Maruthamuthu Shanmugam (Migration)

Maruthamuthu Shanmugam (Migration) [2019] AATA 1605 (15 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vimalkumar Maruthamuthu Shanmugam
CASE NUMBER:  1825293
DIBP REFERENCE(S):  BCC2018/1831552
MEMBER:Kira Raif
DATE:15 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 15 January 2019 at 4:57pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional)(Class VF) – Subclass 476 (Skilled Recognised Graduate) – Bachelor of Engineering – bogus documents – incorrect answers – issues with migration agent – applicant complicit in actions of agent – negligent and recklessly indifferent in dealing with agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 101,103, 107,108, 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

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).
The applicant is a national of India born in April 1993. He was granted the Skilled Recognised Graduate Class VF visa on 17 October 2017. The visa was to be in effect until 5 August 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 did not provide his response to the NOICC and his visa was cancelled on 23 August 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 15 January 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
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.
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?
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.
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?
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.
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 25 August 2017.
b.In his application form, in response to a question about his educational qualifications, the applicant stated that he completed a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology between August 2013 and April 2017.
c.In support of his visa application the applicant provided a Consolidated Statement of Grades issued by Sri Krishna College of Engineering and Technology dated 15 April 2017 for a Bachelor of Mechanical Engineering.
d.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 17 October 2017. He entered Australia on 5 February 2018.
e.The Department’s investigation found that the applicant’s consolidated statement of grades has been shown to be identical to those provided to the Department by a number of others claiming to be Bachelor of Mechanical Engineering graduates from Sri Krishna College of Engineering and Technology. In each case the subject grades, month and year of passing, date of issue and cumulative grade point average are an identical match. Only the graduate’s personal details (names, dates of births, photos and register number), have been changed but in every other respect the documents are identical.
In his written response to the NOICC the applicant stated that he completed a Bachelor of Computer Engineering at Karpagam University in 2014. He then approached an agent from LP Career Solutions for an opportunity to study or work abroad. He paid fees to the agent and provided his academic documents and was granted the visa. The applicant states that he was not aware of the bogus documents until he received the NOICC and had no knowledge of how the bogus documents were included in his application. He only provided genuine documents to his agent and believes the agent had intentionally provided bogus documents without his knowledge or consent. He should not be considered as the one who caused the bogus documents to be given. The applicant included with his submission copies of his degree and academic papers for the Bachelor of Engineering in Computer Science and Engineering from Karpagam University. In his oral evidence to the Tribunal the applicant also said that the provision of bogus documents happened without his knowledge and it was not until he received the NOICC that he realised the documents were substituted.
Having regard to the Departmental inquiries as outlined above, as well as the applicant’s written submission to the delegate and oral evidence to the Tribunal, the Tribunal finds that the applicant did not attend Sri Krishna College of Engineering Technology between August 2013 and April 2017.
The Tribunal finds that the consolidated statement of grades for the Bachelor of Mechanical Engineering from Sri Krishna College of Engineering Technology is a bogus document within the meaning of s. 5(a) because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, a bogus document or caused such a document to be so given, produced or provided.
The Tribunal further finds that on the application form, in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology between August 2013 and April 2017. The Tribunal finds that the applicant completed his application form in a way that an incorrect answer was given.
The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications 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.
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. 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.
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.
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?
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).
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
The correct information is that the applicant did not attend the Sri Krishna College of Engineering and Technology and did not obtain the Bachelor of Mechanical Engineering from that institution. He has completed a different qualification and not the one referred to in his visa application.
The content of the genuine document (if any)
The Tribunal found that the consolidated statement of grades is not a genuine document. The genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering from Sri Krishna College of Engineering and Technology.
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
The applicant presented to the delegate evidence of having completed a Bachelor of Engineering in Computer Science and Engineering at Karpagam University. The legislation requires that an applicant must be an engineering graduate and also that the qualification must be awarded by a prescribed university – see cl. 476.212. Thus, consideration of the applicant’s qualification would have been central to the assessment of his eligibility for the visa.
The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document. It is not necessary for the Tribunal to determine whether the applicant would have been entitled to the visa, if the correct information was known.
The circumstances in which the non-compliance occurred
In his response to the NOICC and his evidence to the Tribunal the applicant states that he approached an agent to assist him with the visa and was unaware that the agent submitted a different qualification. The applicant claims that he was not involved in the commission of fraud but it was his agent. The applicant repeatedly told the Tribunal that it was not until he received the cancellation notice that he learned about the provision of a bogus document.
The Tribunal finds the applicant’s submission problematic. The Tribunal is of the view that the applicant had ample opportunities and a responsibility to learn what evidence was being submitted on his behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and he could have made a request to check the entire application before its lodgement. The applicant said that he checked with the local police station and the governing agency and there were no complaints about the agent, so he trusted the agent but while the applicant may have trusted the agent generally, he had responsibilities in relation to his specific application. The applicant said that because the agent told him everything was fine, there was no need to check. The Tribunal does not consider this to be sufficient. The applicant then said that he repeatedly asked the agent to check the papers but the agent would not allow him to check the application. The Tribunal is of the view that as a customer who paid the fee to the agent, the applicant had some control over the process.
The Tribunal is mindful that the issue here 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 it was submitted. In the Tribunal’s view, he had the responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate. It is not apparent that the applicant had taken any such steps.
The applicant claims that he did request to see the papers from the agent but the agent refused. The Tribunal does not accept that evidence. As noted above, the applicant paid a fee to the agent and could have terminated the agreement or not paid the fee until he saw the papers. The applicant said that the director of the company gave them the assurance that everything was fine. That appears to have been sufficient for the applicant, with no further steps being taken to ensure the accuracy of the information.
The Tribunal considers it significant that the applicant knew his education provider did not meet the visa eligibility requirements. Although the applicant claims the agent told him he could have his qualifications recognised or re-issued by Anna University, it is not apparent that the applicant engaged in that process or monitored the agent’s doing so. The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent.
The present circumstances of the visa holder
The applicant stated in his response to the NOICC that he thought he may be eligible to apply for a Student visa and would have made that application if he was informed of that option in India. The applicant states that he wants to pursue further education in Australia and that IT qualifications are in high demand. There is no evidence that the applicant has made an application for the Student visa, or had taken any steps to make such an application, since entering Australia and before his visa was cancelled. The Tribunal also notes that the applicant is eligible to make such an application in the future, although he may be subject to an exclusion period.
In oral evidence the applicant told the Tribunal that he does not work and relies on friends financially. When asked why he chose to stay in Australia in such circumstances, the applicant said that he prefers to stay in Australia to see justice done. He also wants to apply for a Student visa in the future.
The applicant told the Tribunal that he did not apply for a Student visa before the cancellation because he wanted to work and the Skilled visa gave him more limited opportunity to work than the Skilled visa. The applicant also said that he wanted to work to save money for the Student visa but his evidence is that he has not been working since his visa was cancelled over four months earlier. The Tribunal is of the view that if the applicant had any intention of studying in Australia, he could have enrolled in a course and transferred to a Student visa before the cancellation of the Skilled visa. The applicant has not done that. He has made no effort to leave Australia and seek a Student visa offshore (although the Tribunal accepts he may be subject to an exclusion period.) The applicant claims he had no money to enrol in a course and wanted to save money but he also states that his parents would support his study. If that is the case, his parents could have supported his study before the cancellation of the present visa, even if the applicant’s preference was to be self-reliant. The Tribunal finds that the applicant has made no effort to enrol in any course or to seek a Student visa prior to the cancellation of his Skilled visa. The Tribunal does not accept that he had no access to funds to support his study, given his claim that his parents would support his study. The Tribunal does not accept that the applicant has a genuine intention of studying 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
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
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The application for the visa was made in August 2017. Approximately 15 months passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant has not presented any evidence of having made any contribution to the community. The applicant claims that he has not harmed the community in any way.
The applicant states in his response to the NOICC that the IT qualifications are in high demand in Australia. However, the applicant has not presented evidence of working in an occupation in demand since entering Australia and his evidence to the Tribunal is that he has not worked since his visa was cancelled.
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
If the applicant resides in Australia and 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 they will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and exclusion periods may apply. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are restrictions on the type of visas the applicant can apply for onshore.
Whether there would be consequential cancellations under s.140

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.
There are no children who would be affected by the cancellation.
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged as a result of his visa being cancelled. The applicant told the Tribunal that there would be no threats to his life in India.
The applicant suggested to the Tribunal that it may be difficult for him to find a job because of the time he has spent in Australia and not working in his field. The Tribunal does not consider that the applicant’s claimed inability to find a job in his field in Australia would give rise to Australia’s protection obligations. In any case, the Tribunal is mindful that the applicant is eligible to seek a protection visa if he believes he is owed protection obligations and his claims would be assessed as part of that process. 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
The applicant told the Tribunal that he is concerned whether he can work and look after his parents if he returns to India. The applicant claims that he tried to apply for jobs online but not every company accepts online applications and he cannot do interviews. The applicant presented no evidence of having sought, and of having been denied employment in India. His evidence, at best, may suggest that he cannot apply for certain jobs online, not that he would be unable to get employment because of the time he has spent in Australia.
There appears to be no basis for the applicant’s claim that he would be denied employment in India because of the time he has spent in Australia. While the applicant’s job applications may have been rejected, there is no probative evidence to indicate that his job applications were rejected because of the time he has spent in Australia, rather than his physical absence from India. The Tribunal does not accept the applicant’s evidence that he would be unable to find a job if he were to return to India.
The Tribunal is also mindful that the visa in question is a temporary visa only. The visa was in effect for two years and would expire in August 2019. The visa does not permit the applicant to remain in Australia beyond that date unless he is granted another visa. The applicant would need to make arrangements to re-establish himself in his home country and that would include finding employment in India. The Tribunal is also mindful that when the applicant made the decision to travel to Australia, there could be no guarantee that he would obtain employment in a particular field. There was always a possibility that he would work in a different field. Presumably, the applicant considered these options, and the risks, when seeking the visa to travel to Australia.
The applicant told the Tribunal that he has no money to pay for his expenses because he does not work. The applicant states that if he can work and earn, or study and upgrade his study, it would be beneficial for him in the future. Essentially, the applicant submits that his visa should be reinstated to enable him to work in Australia. The applicant’s evidence to the Tribunal is that he has not applied for permission to work on his Bridging visa, which he has held since August 2018. The Tribunal accepts that if the visa remains cancelled, the applicant may not have the opportunity to work in Australia. The Tribunal is prepared to accept that certain hardship would be caused to the applicant by the cancellation because the applicant will not have the opportunity to live, study and work in Australia.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant had not complied with s. 101 and s. 103 of the Act. The Tribunal finds that the cancellation would not be in breach of Australia’s international obligations. The Tribunal accepts that the applicant would experience some hardship as a result of his visa being cancelled, and the cancellation would affect his future visa application, including his ability to seek a Student visa, as well as the applicant’s ability to work in Australia. The Tribunal accepts the applicant’s evidence that his desire is to stay in Australia and work. The Tribunal acknowledges that there factors in favour of the cancellation being set aside.
Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s educational qualifications were central to determining his eligibility for the visa. The Tribunal has formed the view that the applicant could have taken more steps to monitor the application prepared by the agent and to ensure the correct information and genuine documents were submitted on his behalf. The applicant has not taken adequate steps to do so. In the Tribunal’s view, the circumstances in which the non-compliance occurred, and the significance of the incorrect answers and bogus documents to the decision to grant the visa outweigh other considerations.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.
Kira Raif
Senior Member

[2019] AATA 1605

15 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction