Mohammed Ali (Migration)

[2018] AATA 5846

Mohammed Ali (Migration) [2018] AATA 5846 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Danisha Mol Mohammed Ali

CASE NUMBER:  1833042

DIBP REFERENCE(S):  BCC2018/3883455

MEMBER:Kira Raif

DATE:14 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2018 at 2:39pm

CATCHWORDS
MIGRATION – Cancellation – Skilled Recognised Graduate Class VF visa – Subclass 476 –– incorrect answers – agent provided bogus documents – Engineering course – failed to take reasonable steps to check information in application – complicit in fraud – indifferent – never entitled to visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 98, 100, 101, 103, 107, 109, 111, 140, 359A, 360, 363
Migration Regulations 1994, r 2.41, Schedule 2, cl 476.212, Schedule 4, PIC 4020

CASES
Hasran v MIAC [2010] FCAFC 40
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 1993. She was granted the Skilled Recognised Graduate Class VF visa on 27 November 2017. The visa was to be in effect until 12 June 2019. On 11 October 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 8 November 2018. The applicant seeks review of the delegate’s decision.

3. On 29 November 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 13 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant did not provide her comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   Relevant law

5. 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.

6. 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? 

7. 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.

8. 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?

9. 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.

10. 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 12 October 2017.

    b.In her application form, in response to a question about her post-secondary qualifications, the applicant stated that she completed a Bachelor of Civil Engineering at Adhiyamaan College of Engineering at Hosur between 1 August 2013 and 30 April 2017.

    c.On pages 9 and 10 of the application form the applicant signed a ‘declaration for all applicants’ confirming that she provided complete and correct information in every detail on the form and any attachments.

    d.In support of her visa application the applicant provided a consolidated Statement of Grades issued by Adhiyamaan College in May 2017.

    e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 27 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). This applicant was provided with an opportunity to comment on that information pursuant to s. 359A of the Act.

11. In her written response to the NOICC the applicant stated that she undertook a Bachelor of Technology in Civil Major at Cochhin College of Engineering and Technology from 2013. She did not obtain the qualification because she failed some subjects. She then approached an agent and paid a fee to start the visa process and obtain a job. The agent asked for the documents, including her educational papers and she provided correct documents to the agent. She was unaware that the agent would provide bogus documents with her visa application. She believes the agent created a fake email address in her name for communicating with the Department and she was not given the password. The applicant included with her submission evidence of her payment to, and communication with, LP Career Solutions.

12. The information provided by the applicant indicates that she did not complete a Bachelor of Civil Engineering at Adhiyamaan College. The Tribunal finds that the applicant did not attend Adhiyamaan College at Hosur between 1 August 2013 and 30 April 2017.  

13. The Tribunal finds that the consolidated statement of grades for the Bachelor of Civil Engineering from Adhiyamaan College 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 or within the meaning of s. 5(b) because it was 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.

14. The Tribunal further finds that on the application forms, in response to questions about her qualifications, the applicant gave an incorrect answer by stating that she had completed a Bachelor of Civil Engineering at Adhiyamaan College. The Tribunal finds that the applicant completed her application form in a way that an incorrect answer was 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.

15. The Tribunal acknowledges the applicant’s submission that she did not provide the bogus qualifications and that she was unaware of what information was submitted on her behalf by the agent. 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.

16. 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.

17. The Tribunal finds that the applicant filled in or completed her 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. She 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 complete a Bachelor of Civil Engineering at Adhiyamaan College of Engineering at Hosur between 1 August 2013 and 30 April 2017.

    The content of the genuine document (if any)

22. A genuine Statement of Grades would not refer to the applicant completing a Bachelor of Civil Engineering at Adhiyamaan College of Engineering.

    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. To be granted the visa, the applicant was required to complete a prescribed type of qualification at a prescribed institution. Information and documents about the applicant’s educational qualifications were central to assessing her eligibility for the visa for the purpose of cl. 476.212.

24. Further, the applicant would have been required to meet PIC 4020 before she could be granted the visa and if it was known that the applicant gave a bogus document with her application, the assessment against PIC 4020 would have been more thorough.

25. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on a bogus document.

    The circumstances in which the non-compliance occurred

26. In her submission to the delegate of 25 October 2018 the applicant states that she could not complete her bachelor degree for a variety of reasons. She later approached an agent to assist her with the visa and employment, provided genuine documents to the agent and was unaware that the agent submitted bogus documents. The applicant claims that she was not involved in the commission of fraud.

27. The Tribunal finds the applicant’s submission 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 Tribunal notes that the Department’s website provides information about subclass 476 visas and eligible institutions and that information was readily available to the applicant. If the applicant had made even the basic inquiries, she would have been well aware that her qualifications did not meet the requirements for the grant of the visa for which she was applying. 

28. The Tribunal is mindful that the issue is not only the provision of bogus academic documents 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 the Tribunal’s view, she 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. The Tribunal finds that the applicant was either complicit in the actions of her agent or that 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 submits hat her family had spent a considerable sum of money to send her overseas to gain international exposure and experience. The applicant states that her partner has been living in Australia at the time she was completing her studies and that was the reason she chose to travel to Australia. The applicant provided evidence of her studies and a marriage certificate. The primary decision record indicates that the student visa application of the applicant’s spouse had been refused.

30. The applicant states that she is undertaking a Diploma of Nursing at Australian Southern Cross Education Institute. There is little evidence before the Tribunal about the applicant’s present study but the Tribunal is prepared to accept that the study is ongoing. The Tribunal is mindful that if the applicant is a genuine student, she may be eligible to seek a Student visa in the future.

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

31. 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

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

    The time that has elapsed since the non-compliance

33. The application for the visa was made in October 2017. Approximately 14 months passed since the non-compliance.

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

34. There are no known breaches of the law.

    Any contribution made by the holder to the community.

35. There is no evidence before the Tribunal concerning the applicant‘s contribution to the community.

36. 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

37. 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 they 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 applicants from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

38. 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.   

39. The applicant does not claim that there are children who would be affected by the cancellation.

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

41. 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.

42. The applicant refers to the considerable sums spent to enable her to travel to Australia. The Tribunal also acknowledges that the applicant is presently undertaking a course at an Australian intuition. Her husband lives in Australia, although it does not appear that he presently holds a substantive visa. The Tribunal accepts that hardship would be caused to the applicant if the visa is cancelled.

43. The Tribunal has considered the totality of the applicant’s circumstances.

44. The Tribunal notes that the purpose of the subclass 476 visa is to enable recent engineering graduates to obtain experience in Australia. The applicant is not an engineering graduate. Her own evidence is that she has not completed the degree in India because she failed a number of subjects. She did not hold a prescribed qualification from a prescribed university in India. She was never entitled to the visa in question. The Tribunal places significant weight on that factor.

45. The Tribunal has rejected the applicant’s claim that the fraudulent conduct was arranged entirely by the agent. The Tribunal has formed the view that the applicant failed to take reasonable steps to check the information submitted with her application, including the content of the form and the supporting documents. Had the applicant taken even the basic steps to check the content of her application, she would have been aware that fraudulent documents and false information was being submitted on her behalf. The Tribunal has formed the view that the applicant’s failure to take such steps indicates that she was complicit in the fraud, and indifferent to it.

1. The Tribunal acknowledges that the applicant is undertaking a course at present. However, the subclass 476 is not the most appropriate visa to enable the applicant to study in Australia. If she wishes to pursue her study, she may be eligible to apply for a Student visa in the future. The Tribunal does not consider that the applicant should be permitted to maintain the Subclass 476 visa, to which she is not entitled, in order to circumvent the requirements for the grant of the Student visa.

2. 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

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

   Kira Raif
   Senior Member