Murugan (Migration)

[2019] AATA 836

Murugan (Migration) [2019] AATA 836 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arumuga Arun Murugan

CASE NUMBER:  1825295

DIBP REFERENCE(S):  BCC2018/3742124

MEMBER:Kira Raif

DATE:22 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 22 January 2019 at 3:33pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – s. 107 non-compliance – bogus documents – academic qualifications – incorrect information in visa application – application prepared by migration agent – deliberate or inadvertent non-compliance – steps to ensure correctness of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 100, 101, 103, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 476.212

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of India born in June 1995. He was granted the Skilled Recognised Graduate Class VF visa on 20 December 2017. The visa was to be in effect until 8 August 2019. On 9 August 2018 the applicant was issued with a 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 27 August 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 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

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. The Tribunal is satisfied 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 21 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 Mechanical Engineering at Dr Mahalingam College of Engineering and Technology at Pollachi between 1 August 2013 and 31 May 2017.

   c.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 for the award of a degree through Dr Mahalingam College of Engineering and Technology, Pollachi, affiliated to Anna University, in the specialisation of Mechanical Engineering.

   ii.A Consolidated Statement of Grades for the Bachelor of Mechanical Engineering examinations, issued by Dr Mahalingam College of Engineering and Technology on 25 May 2017.

   iii.Statements of Grades for the Bachelor of Mechanical Engineering examinations issued by Dr Mahalingam College of Engineering and Technology for each academic year between December 2013 and April 2017.

   d.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 20 December 2017.

   e.Information in the primary decision record indicates that:

   i.Anna University became an affiliating university in 2001 and again in 2011. Office of the Controller of Examinations of Anna University is responsible for maintaining the standard of university examinations.

   ii.The controller of examinations at Anna University is currently Dr Venkatesan, who first commenced in that role in March 2011.

   iii.On 26 March 2017 a representative of the Department’s New Delhi office met with Dr Venketesan at Anna University who had recently returned to the role of Controller of Examinations.

   f.Dr Venkatesan’s signature on a public document dated 1 November 2011 is different to the signature on the applicant’s Provisional Degree Certificate, indicating the applicant’s Degree Certificate was not signed by the Controller of Examinations.

   g.The applicant’s Consolidated Statement of Grades has been closely matched against a sample from another person who claims to have studied the same course at the same time at the same instutiton. Comparison of the applicant’s document and the other person’s document shows that:

   i.The date of issue, credits, letter grades, grade point and month / year of passing for all the courses listed on the visa holder’s document are identical to those on the other sample.

   ii.The roll number of the applicant’s document is almost identical to the document on the sample, with only one digit difference.

10. In his written response to the NOICC the applicant stated that he completed a Bachelor of Computer Engineering from Karpagam University in November 2016. He approached an agent, LP Career Solutions to arrange study abroad and the agent advised him he could obtain a visa for Australia. The applicant states that he paid a fee to the agent and provided the agent with his educational documents and signed the forms. The applicant states that it was the agent, and not him, who provided fraudulent documents to the Department and he had no knowledge of the fraudulent documents as he only submitted genuine documents with his application. The applicant included with his response to the NOICC evidence of having completed a Bachelor of Computer Science and Engineering at Karpagam University. The applicant also confirmed in oral evidence to the Tribunal that he did not obtain the qualifications mentioned in his application.

11. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering from Dr Mahalingam College of Engineering and Technology as a result of study between December 2013 and April 2017. The applicant’s evidence is that he completed a Bachelor of Computer Engineering from Karpagam University in November 2016. On the basis of this information, the Tribunal finds that the Provisional Certificate from Anna University, the Consolidated Statement of Grades and the Statement of Grades Sheet from Dr Mahalingam College of Engineering and Technology are 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 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.

12. The Tribunal further finds that on the application form, in response to a question about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology at Pollachi between 1 August 2013 and 31 May 2017. The applicant’s evidence in response to the NOICC is that he did not attend that institution and did not obtain that qualification. The Tribunal finds that the applicant completed his application form in such a way that an incorrect answer was given. The Tribunal further finds that the 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.

13. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that it should be considered the agent, and not him, who provided the bogus documents. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without his knowledge or consent. However, contrary to the applicant’s submission, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents.

14. 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.

15. 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?

16. 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).

17. 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 addressed below.

    The correct information

18. The correct information is that the applicant did not attend Dr Mahalingam College of Engineering and Technology and did not obtain the Bachelor of Mechanical Engineering. 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)

19. The genuine document would indicate that the applicant obtained a Bachelor of Computer Engineering at Karpagam College and not a Bachelor of Mechanical Engineering at Dr Mahalingam 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

20. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant claims that his institution was affiliated with Anna University and he did qualify for the visa. However, the applicant did not rely on his genuine qualifications when making the application. He relied on the qualifications which he did not hold. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and a bogus document. It is not necessary for the Tribunal to determine whether the applicant would have been eligible for the visa if the correct information was known. 

    The circumstances in which the non-compliance occurred

21. In his responses to the NOICC 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. In oral evidence the applicant told the Tribunal that he provided genuine documents to the agent and did not realise the agent submitted something else. He also did not complete his own form but was only asked to check personal details. He did not know until his visa was cancelled that incorrect information was submitted.

22. 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 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. 

23. 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 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 told the Tribunal that he only checked his personal details but nothing else.

24. The applicant claims that before he approached the agent, he sought out information about the agent with the local police and there were no concerns about the agent. He only instructed the agent after doing the checking. The applicant said that he had done everything that was possible for him to do. The Tribunal does not consider that to be sufficient. It may have been prudent for the applicant to check the application, not only the agency he had engaged.

25. The Tribunal finds that the applicant was either complicit in the conduct 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

26. The applicant indicated in his response to the NOICC that he has been advised he is eligible to apply for a Student visa and would have made that application if he was given correct advice. In oral evidence, the applicant states that he planned to apply for a Student visa after 18 months in Australia but he cannot do that now. The Tribunal is mindful that the applicant may be eligible to make an application for a Student visa irrespective of the outcome of this review, although the Tribunal acknowledges that the applicant may be subject to an exclusion period as a result of the cancellation.

27. The Tribunal also notes that the applicant’s visa was granted more than a year ago and in the Tribunal’s view, if the applicant had a genuine intention of studying, he had ample time to make the application for the Student visa. The applicant explained to the Tribunal that his Skilled visa allowed him to work and he wanted to work first and save money for his study and only then apply for the Student visa. The applicant’s preference appears to be employment, rather than study, in Australia. The Tribunal also notes that the applicant presented no evidence of having made any inquiries about studying or enrolling in a course in Australia and despite telling the Tribunal he contacted some providers, he said he has not made any decision where to study. The applicant told the Tribunal that he did not have money and wanted to work to pay for the course but he also told the Tribunal that he has no savings and his family would support his study if he is able to apply for the Student visa. The Tribunal finds the applicant’s evidence unsatisfactory. If the applicant intends to rely on his parents to support his study in Australia, he could have made the application for the Student visa in the past, prior to his Skilled visa being cancelled. The Tribunal does not accept that the applicant has a genuine intention of studying in Australia or that he is a genuine student.

28. The applicant claims that his qualifications are in high demand in Australia. However, the applicant has not provided any evidence of his ongoing employment and he told the Tribunal that he is not presently working and he relies on friends. The applicant told the Tribunal that he used to work as a production assistant and a computer operator. It is not apparent that the applicant is utilising his qualifications or that the jobs he previously engaged in are in demand.

29. The applicant told the Tribunal that he is mentally stressed and upset and cannot concentrate. The applicant has not presented any medical evidence and the Tribunal is not prepared to accept the applicant’s assertions without probative evidence.

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

30. 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

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

    The time that has elapsed since the non-compliance

32. The application for the visa was made in September 2017. Approximately 16 months have passed since the non-compliance.

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

33. There are no known breaches of the law.

    Any contribution made by the holder to the community

34. In his submission to the delegate, the applicant refers to the shorage of engineers in Australia, stating that he is able to make a contribution through his qualifications. The delegate notes that the applicant has not provided any evidence of his employment in the engineering field and in his oral evidence to the Tribunal the applicant stated that he has not worked as an engineer. The Tribunal is not satisfied the applicant has made any meaningful contribution to the community.

35. 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 Procedures 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

1. 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 applicants from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that exclusion periods may apply and that there are only limited categories of visas the applicant can seek in Australia.

   Whether there would be consequential cancellations under s.140

2. 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.   

3. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged in relation to him. There are no children affected by the cancellation.

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

4. The applicant told the Tribunal that because he has been living in Australia for a long time, he ‘cannot do anything’ in India and it would be hard for him to get a job. The applicant presented no evidence of having sought any jobs or of having been denied employment and the Tribunal does not accept the applicant’s claims. The Tribunal also notes that the visa in question is a temporary visa with a relatively short expiry date. As noted above, the applicant would be expected to leave the country and he can have no expectation to remain in Australia permanently and even long term unless he is granted another visa.

5. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant has not complied with s.101 and s.103 of the Act.

6. The Tribunal has formed the view that the applicant did not take adequate steps to check his application and to ensure the correctness of the application and papers being submitted on his behalf. The Tribunal rejects the applicant’s evidence that he is entirely innocent of the fraud and should not be penalised for the actions of his agent.

7. The Tribunal is prepared to accept that a certain degree of hardship would be caused to the applicant as a result of the cancellation, primarily because the applicant may not be able to obtain a Student visa onshore and he may be subject to certain limitations in relation to his future visa applications. In the applicant’s circumstances, and for the reasons stated above, the Tribunal does not consider that his inability to obtain a Student visa as a result of his Skilled visa being cancelled justifies the setting aside of the cancellation. The Tribunal accepts that if the applicant does not hold a visa and if he is required to leave Australia, he will not be able to pursue employment in Australia. However, the Tribunal places weight on the fact that the visa in question is a temporary visa which does not permit the applicant to remain in Australia beyond August 2019. Despite the applicant’s claims that there are many reasons he cannot, or does not wish to, return to India, the visa in question is not a visa to allow the applicant to remain in Australia on a long term basis.

8. The Tribunal acknowledges that there are no other known instances of non-compliance or breaches of the law and that over 12 months have passed since the non-compliance. The cancellation of the visa would not breach Australia’s international obligations.

9. Overall, the Tribunal places greater weight on the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s study was central to his eligibility for the visa and it is that information which was incorrect. The Tribunal finds that these factors outweigh other considerations.

   Conclusion

10. 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

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

    Kira Raif
    Senior Member