Palanisamy (Migration)

[2019] AATA 831

Palanisamy (Migration) [2019] AATA 831 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gokulnath Palanisamy
Mrs Kaviya Kumaresan

CASE NUMBER:  1824538

DIBP REFERENCE(S):  BCC2018/2103221

MEMBER:Kira Raif

DATE:23 January 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 January 2019 at 1:44pm

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 first named applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of India. The first named visa applicant (‘the applicant’) was born in July 1995. The applicants were granted the Skilled Recognised Graduate Class VF visas on 14 September 2017. The visas were to be in effect until 12 May 2019. On 30 July 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 22 August 2018. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The first named applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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. 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 4 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 Civil Engineering at Adhiyamaan College of Engineering between 1 September 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 he provided complete and correct information in every detail on the form and any attachments.

    d.The applicant also submitted a Form 80. On that form, in response to Question 20, the applicant stated that he completed a Bachelor of Civil Engineering at Adhiyamaan College of Engineering between September 2013 and April 2017.

    e.In support of his visa application the applicant provided

    i.A Provisional Certificate from Anna University dated 29 June 2017 indicating that the applicant qualified for Bachelor in Civil Engineering degree through Adhiyamaan College of Engineering at Hosur.  

    ii.Statements of Grades issued by Adhiyamaan College of Engineering, detailing subjects of study the applicant undertook to obtain the degree and respective grates he achieved between September 2013 and April 2017

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

    g.The Department’s inquiries conducted after the grant of the visa show that the applicant’s Provisional Certificate and the Statement of Grades have been shown to be identical to those provided to the Department by a number of other persons claiming to be Bachelor of Civil Engineering graduates from Adhiyamaan College of Engineering. In each of these cases, it has been found that the subject score, grade point average and dates of completion are identical with only personal identifiers (including name, date of birth and photo) altered to match the visa applicant.

11. In his written response to the NOICC the applicant stated that his family valued quality education and he completed a Diploma of Textile in India. He applied for the visa through an agent and has no knowledge of providing bogus documents to the Department. He states that he signed the blank form 80 and incorrect details were completed by the agent afterwards. The applicant claims that the incorrect information was provided by the agent and not him.

12. The applicant told the Tribunal in oral evidence that he made the application through the Australian Migration agency. He had been trying to get an overseas visa for a long time and all of his friends approached this agency and were granted visas. His friends suggested to him to speak to the consultant and do whatever the agent asked him to do. The applicant confirmed that he did not attend Adhiyamaan College.  He attended BSC College of Technology and completed a Diploma in Textile Technology.

13. The applicant’s evidence indicates that he had not obtained a Bachelor of Civil Engineering at Adhiyamaan College of Engineering as a result of study between 1 September 2013 and 30 April 2017. On the basis of this information, the Tribunal finds that the Provisional Certificate from Anna University / Adhiyamaan College of Engineering and the Statement of Grades issued by Adhiyamaan College 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 are counterfeit or have been altered by a person who does not have 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 his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Civil Engineering at Adhiyamaan College of Engineering between September 2013 and April 2017. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were 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.

15. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that it was the agent, and not him, who provided the bogus documents and incorrect answers. The applicant claims he signed the blank form and incorrect information was provided by the agent. 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, 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.

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 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.

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. They are:

    The correct information

21. The correct information is that the applicant did not attend the Adhiyamaan College for the Civil Engineering degree that is identified in his application. He has completed a different qualification and not the one he referred to in his visa application.

    The content of the genuine document (if any)

22. The genuine document would show that the applicant completed a Diploma in textiles and not a Bachelor of Civil Engineering from 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. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant claims that he does not hold an engineering qualification and did not attend the prescribed institution.

24. 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 bogus documents relating to the applicant’s study.

    The circumstances in which the non-compliance occurred

25. 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 all his friends approached that agent, so he trusted the agent and simply followed the agent’s instructions. The applicant states that the agent told him there were many papers to be completed, so he only gave originals to the agent and the agent did all the paperwork.

26. The Tribunal finds the applicant’s submission problematic. The Tribunal accepts that the applicant instructed an agent to complete and submit his application. However, 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, rather than sign a blank form and leave the rest to the agent. 

27. 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 signing it and before it was submitted. The applicant told the Tribunal that he signed the blank form 80 and the agent completed the detail. In the Tribunal’s view, the applicant had the responsibility to check the content of the forms 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 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

28. The applicant states in his response to the NOIC that his family spent a large sum of money on his education and career and if his visa is cancelled, he cannot achieve his desire to study an MBA in Australia. 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. Importantly, however, there is no evidence to indicate that the applicant has made an application for the Student visa, or any effort to make such an application since his arrival in Australia and before the cancellation of his Skilled visa. In the Tribunal’s view, if the applicant was genuine in his intention to study in Australia, he had ample time to make that visa application. The Tribunal is not satisfied that the applicant genuinely intended to study in Australia and, if he does, he can make an application for a Student visa in the future.

29. The applicant’s oral evidence to the Tribunal is different as the applicant stated that his wife intended to apply for a Student visa while he wanted to hold the dependent visa which would allow him to work. The applicant said that his wife had completed an Electrical and Communication degree and he was hoping that she could do a Networking degree. They had saved money for her education but now they use that money for their living expenses. The Tribunal is mindful that this information contradicts the applicant’s written submission to the delegate in response to the NOICC (which the applicant claims was prepared by a lawyer on his instructions). The applicant explained to the Tribunal that they changed their plans to help with the permanent migration. The Tribunal accepts that the cancellation of the visa may have an effect on the applicant’s or his partner’s eligibility to be granted other visas.

30. The applicant claims in his submission to the delegate that his family and friends and parents in law will discriminate against him as a result of his visa being cancelled and he will be discriminated againast and would have to live his life on his parents’ terms. He would be treated as a failure and the cancellation of the visa would have a devastating effect on his future. The Tribunal does not accept these submissions, given that the applicant only holds a visa until May 2019 and would have been required to leave the country at that time. It is not entirely clear why the applicant’s presence in Australia for an additional few months would affect the way he is treated and required to live his life or his interactions with friends and family. In the Tribunal’s veiw, the applicant is an independent adult and can choose to live his life in any way he desires. 

31. The applicant also told the Tribunal that he paid a lot of money and pawned his mother’s jewellery to come to Australia and he was cheated by the agent.

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

32. 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

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

    The time that has elapsed since the non-compliance

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

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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community.

36. The applicant has not presented any evidence of having made any contribution to the community. He told the Tribunal he has not done anything bad.

37. 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

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. The visa held by the applicant’s partner has been cancelled under s. 140 of the Act.

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

4. The applicant states in his written submission to the delegate that he would face discrimination in his home country from parents and friends as a result of his visa being cancelled. He states he would have to live by his parents’ rules. In oral evidence to the Tribunal the applicant said that there is a caste system in India. He and his partner had been in love for a number of years and he will face discrimination because of his caste. The Tribunal is not satisfied there is any connection between the couple’s caste and the cancellation of the visa.

5. The Tribunal finds the applicant’s claims vague and these are not supported by any probative evidence. However, if the applicant believes he may be subjected to any persecution or other form of harm upon return to India, he is eligible to seek a protection visa where such claims would be assessed. Nothing prevents the applicant from being able to lodge such an application. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation because the applicant has an option of seeking a protection visa.

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

6. The applicant states he may be mistreated by his family and others if his visa is cancelled. He states that he cannot pursue his study in Australia and that a lot of money has been spent to enable him to travel to Australia. As noted above, the Tribunal does not accept these claims, given that the visa in question is a temporary visa only which was due to expire in May 2019.

7. The applicant states that if his visa is cancelled, people will speak degradingly because they will say that he cheated the system and had gone overseas and come back early. The Tribunal finds these submissions unconvincing. Firstly, it is unclear how anyone would know that the applicant’s visa was cancelled and the reasons it was cancelled, unless the applicant chooses to share that information. Secondly, as noted above, the visa in question is a temporary visa, which would expire in May 2019 and the applicant would be expected to return to his home country before the expiry of his visa. There can be no expectation that the applicant would be able to live in Australia permanently or a long term basis. The Tribunal does not accept the applicant’s argument that he told the friends he will return in May and that he would experience discrimination if he retunes to India three months earlier.  The applicant states that he had plans to seek permanent residence in Australia through the student visa and a permanent visa. However, the applicant cannot assume that he would be granted any of these visas or permanent residence. At present, the only visa in question is a temporary visa which is due to expire in May 2019. The applicant has no other visas and there can be no expectation in relation to future visa grants.

8. The Tribunal has considered the entirety of 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.

9. The Tribunal accepts that some hardship would be caused to the applicant and his partner as a result of the cancellation because they will not be able to remain in Australia and there will be limitations on future visa applications, including a Student visa application. The Tribunal acknowledges the applicants’ plan to live in Australia and accepts that such plans are likely to be affected by the cancellation of the visa.

10. The Tribunal has found that the cancellation would not breach Australia’s international obligations. There are no other known instances of non-compliance or breaches of the law. More than 12 months passed since the non-compliance. The Tribunal acknowledges that the visa held by the applicant’s partner is also cancelled.

11. The Tribunal places significant weight on the circumstances in which the non-compliance occurred. As noted above, 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.

12. The Tribunal also places weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. Importantly, the applicant was not entitled to the grant of the visa because he did not have the prescribed qualification. In the Tribunal’s view, these matters outweigh other considerations.

13. 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

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

15. The Tribunal has no jurisdiction with respect to the other applicant.

    Kira Raif
    Senior Member