Palani (Migration)

[2019] AATA 980

Palani (Migration) [2019] AATA 980 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nandakumar Palani

CASE NUMBER:  1825635

DIBP REFERENCE(S):  BCC2018/2432129

MEMBER:Kira Raif

DATE:10 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 10 January 2019 at 3:27pm

CATCHWORDS
MIGRATION – cancellation – Skilled Recognised Graduate visa – Subclass 476 – bogus academic transcripts and award qualification provided –applicant provided incorrect information on the application form – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 100, 101, 102, 103, 104, 105, 107, 109, 111, 140
Migration Regulations 1994, r 2.41, Schedule 2, cl 476.212, Schedule 4, PIC 4020

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 March 1994. He was granted the Skilled Recognised Graduate Class VF visa on 14 November 2017. The visa was to be in effect until 6 August 2019. On 7 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 28 August 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 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 Immigration of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal is satisfied that the notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant made the application for the Class VF visa on 16 September 2017.

   b.On page 8 of the application form, in response to a question about his post-secondary qualifications, the applicant stated that he completed a Bachelor of Civil Engineering at Adhiyamaan College of Engineering at Hosur, Krishnagirl District, India, between 1 August 2013 and 30 April 2017.

   c.On pages 9 and 10 of the application form the applicant declared that the information provided in the application was complete, correct and up to date.

   d.In support of his visa application the applicant provided a provisional certificate dated 29 June 2017 issued by Anna University which states that the applicant was awarded a Bachelor of Civil Engineering in April 2017. It states that the applicant qualified for the award of the degree through Adhiyamaan College of Engineering, Hosur, which is an autonomous college affiliated with Anna University.

   e.The applicant provided with his application an academic transcript issued by Adhiyamaan College of Engineering dated 30 May 2017, which refers to the applicant completing a Bachelor of Engineering in Civil Engineering at the college in April 2017.

   f.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 14 November 2017.

   g.The Department undertook integrity checks regarding the applicant’s qualifications. The integrity check identified that the applicant’s academic transcript contains identical scores, grades and dates as bogus academic transcripts provided by other applicants and the personal identifiers have been made to match the visa holder’s details.

10. In his written response to the NOICC dated 9 August 2018 the applicant states that he studied Electrical Engineering at Visvesvaraya Technological University and wanted to come to Australia to gain work experience. He approached a migration agent, SRI SAI Immigration and was advised he could apply for the Subclass 476 visa. He provided the requested documents, including academic documents and was later advised about the visa grant. After he was issued with the NOICC, he obtained a copy of the file and was surprised to learn that the agent lodged documents which he never provided and qualifications he never held. The applicant states that he did not provide bogus documents to the agent or the Department.

11. In oral evidence to the Tribunal, the applicant stated that he completed information on a website and the agent called him and asked him a few questions. The agent then prepared his application and provided incorrect information. The applicant said that he was a recent engineering graduate and he checked that he was eligible for the visa. The agent asked him to do the English test and health test and he provided correct information to the agent. The applicant said that the agent asked him to fill in the form but not the educational information. The applicant said that he did not check the forms or the papers because he did not know he had to.

12. The applicant’s evidence indicates that he had not attended Adhiyamaan College of Engineering at Hosur and did not obtain a Bachelor of Civil Engineering from that institution. The applicant provided in response to the NOICC and to the Tribunal what he claims to be his genuine qualifications and these show that the applicant completed a Bachelor of Engineering (Electrical and Electronics) from Visvesvaraya Technological University in Karnataka. On the basis of the applicant’s response to the NOICC and oral evidence to the Tribunal, the Tribunal finds that the award qualification and academic transcripts relating to the Bachelor of Civil Engineering at Adhiyamaan College of Engineering at Hosur, Krishnagirl District, India were bogus documents within the meaning of s.5(a) of the Act because they purport to have been, but were 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.

13. The Tribunal further finds that on Page 8 of 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 Civil Engineering at Adhiyamaan College of Engineering at Hosur, Krishnagirl District, India, between 1 August 2013 and 30 April 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 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 evidence that he did not provide the bogus qualifications to the agent or the Department and that he was unaware that the agent provided such information in his application. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done by the agent and without the applicant’s knowledge or consent. However, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.100 of the Act 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 of the Act states that ss.107, 108 and 109 of the Act 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.

15. 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.

16. 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?

17. 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).

18. 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 Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

19. The correct information is that the applicant attended a different educational institution and not the one he referred to in his visa application. The applicant’s evidence is that he completed a Bachelor of Engineering from 2012 to 2016 at a different institution.

    The content of the genuine document (if any)

20. The genuine document would not indicate that the applicant obtained his educational qualification from Adhiyamaan College of Engineering, Hosur, which is an autonomous college affiliated with Anna University.

    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

21. The applicant claims that he met the requirements for the grant of the visa because he met the age and English requirements and had completed an engineering degree. The Tribunal notes, however, that the legislation not only requires that an applicant must be an engineering graduate, but the qualification must be awarded by a prescribed university – see cl.476.212 of Schedule 2 to the Regulations. Thus, consideration of the applicant’s qualification would have been central to the assessment of his eligibility for the visa.

22. Further, the applicant would have been required to meet PIC 4020 of Schedule 4 to the Regulations before he could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with his application, the assessment against PIC 4020 would have been more thorough.

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

    The circumstances in which the non-compliance occurred

24. In his response to the NOICC and his evidence to the Tribunal the applicant states that he gave the agent in India his genuine qualifications and completed the form but not the information about his study. The applicant states that he was surprised to see that the agent provided different information in the visa application. The applicant states that his visa should not be cancelled because he would not have made the application if he knew the agent would submit bogus documents or that he was not eligible for the visa.

25. The applicant states that document fraud exists throughout India and he was not involved in the deceptive practice, but rather he was the victim of fraudulent conduct by others. 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. 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. The applicant claims that even though he completed the form, he did not complete information about his study and he could have easily done that. 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 his agent or that he was negligent in his actions and recklessly indifferent in his dealings with the agent.

26. The applicant’s evidence to the Tribunal is that he checked the visa requirements for the visa, however he claims he did not check the list of eligible universities. The Tribunal finds that evidence unconvincing. University eligibility is the key requirement for the grant of this visa. The Tribunal does not accept that the applicant would have checked information about the visa and still be unaware of the educational requirements. The Tribunal is of the view that the applicant’s involvement in the fraud was greater than what he describes.

    The present circumstances of the visa holder

27. The applicant states that he has been living in Australia alone and without any support from the family. The Tribunal is mindful that if the applicant is required to leave Australia as a result of his visa being cancelled, he will have access to family support in his own home country. The applicant states that he is working full-time in his field and sends money overseas to support his parents who sacrificed a lot to allow him to go overseas. The Tribunal accepts that evidence.

28. The applicant provided to the Tribunal evidence of his employment in India and of his present employment and he described his employment. The applicant states that his employer needs him and is willing to sponsor him and he was preparing to go through the sponsorship in March 2019 but his visa was cancelled. The Tribunal is mindful that the sponsorship can still proceed, albeit the applicant may be restricted from making applications onshore and there may be an exclusion period applicable in relation to some visa applications.

29. The applicant states that he had no financial support and has lost his future because of the fraudulent agent. The applicant states that he does not want to leave Australia and wants to stay in Australia for many years. The Tribunal acknowledges that the applicant’s preference may be to stay in Australia but is mindful that the visa in question is a temporary visa only that would not permit the applicant to remain in Australia beyond August 2019. The Tribunal accepts that the cancellation of the visa may affect the applicant’s future visa eligibility.

    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 has 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. The applicant claims that he is becoming an established member of the community and has been employed since arriving in Australia and he had made a number of connections with Australian citizens. The applicant described to the Tribunal how he helped a person with an injury and how he lent money to his friend for her education. The Tribunal accepts that evidence.

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 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

36. 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. The applicant told the Tribunal that he cannot get a visa to any other country if his visa is cancelled. The Tribunal is unable to comment on migration requirements of other countries.

    Whether there would be consequential cancellations under s.140

1. 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.   

2. There are no children affected by the cancellation. The applicant stated in oral evidence that he was once attacked by a schoolmate because of his caste and they complained to the school. The applicant suggested there may be problems because of his caste. The Tribunal has found the applicant’s claims very vague, however, even if the applicant’s claims were true, the Tribunal is mindful that the applicant is eligible to seek a protection visa and his claims would be assessed. The Tribunal does not consider that Australia’s protection obligations would be breached as a result of the visa being cancelled.

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

3. The applicant refers to his settlement in Australia and the fact that he has been employed since entering Australia. The Tribunal acknowledges that evidence and accepts that certain hardship would be caused to the applicant by the cancellation, including possible loss of employment and income in Australia. However, the Tribunal is mindful that the visa in question is a temporary visa only that would not permit the applicant to remain in Australia indefinitely or even long-term. The visa was due to expire in August 2019. At that time, unless the applicant is granted another visa, he would be expected to depart Australia, which would require him to terminate his employment. It may also affect the applicant’s connections in Australia. Whatever hardship the applicant claims he would experience as a result of his visa being cancelled and his departure from Australia must be viewed in light of the fact that the applicant would be expected to depart Australia within a relatively short period.

4. The applicant told the Tribunal that his employer intended to sponsor him for a permanent visa. The Tribunal accepts that the cancellation of the visa may affect future applications and that may also cause hardship to the applicant.

5. The applicant told the Tribunal that he has been providing financial support to his family and is responsible for his sister’s education. His parents are proud of him and he has not told his parents about the visa cancellation. His father is a heart patient and it may affect his health. The Tribunal is prepared to accept that the applicant is providing financial support to his family. The Tribunal accepts that if the visa is cancelled and he cannot work in Australia, the applicant may not have the capacity to provide financial support to his family in India.

6. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant and his family. The Tribunal acknowledges the applicant’s desire to remain in Australia and ‘grow professionally and personally’. The applicant told the Tribunal that after his visa was cancelled, he could not work and found it difficult to support himself. He was mentally affected. The Tribunal accepts that if the visa is cancelled, it may cause hardship to the applicant.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave incorrect answers on the application form and bogus documents with his visa application and that he breached s.101 and s.103 of the Act. The Tribunal found that there are grounds for cancelling his visa.

8. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant, particularly because it may lead to loss of employment and, unless the applicant is granted another visa, the applicant would be required to leave Australia. The Tribunal accepts that the applicant had worked hard to enable him to travel to Australia and a decision to cancel the visa may devastate the applicant and his family in India. It may affect the applicant emotionally, financially and in other respects. Despite these considerations, the Tribunal places weight on the fact that the visa in question is a temporary visa which is only valid for nine months and the applicant would have been required to make alternative arrangements to be able to remain in Australia.

9. There are no other instances of non-compliance or of breaches of the law. Australia’s international obligations would not be breached by the cancellation. A little over a year passed since the non-compliance.

10. The Tribunal places significant weight on the fact that the provision of incorrect answers and bogus documents related to a criterion that was central to the applicant’s eligibility for the visa. The applicant was required to have graduated from a prescribed educational institution and he provided bogus documents and incorrect answers in order to meet that requirement. The decision to grant the visa was based on the incorrect information. While the applicant claims it was all arranged by an agent, the Tribunal has formed the view that the applicant was either complicit in the fraud or that he had not taken adequate steps to ensure the correct answers and information was submitted on his behalf. In the Tribunal’s view, these matters outweigh other considerations.

    Conclusion

11. 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

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

    Kira Raif
    Senior Member