Panachikkal George (Migration)

[2019] AATA 834

Panachikkal George (Migration) [2019] AATA 834 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Melgyn Panachikkal George

CASE NUMBER:  1825182

DIBP REFERENCE(S):  BCC2018/2187085

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 10:51am

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 August 1993. He was granted the Skilled Recognised Graduate Class VF visa on 16 October 2017. The visa was to be in effect until 30 April 2019. On 10 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 27 August 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. 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. 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 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 25 August 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 Sri Krishna College of Engineering and Technology 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 he provided complete and correct information in every detail on the form and any attachments.

   d.The applicant also submitted a Form 80 which was signed on 9 September 20117. On that form, in response to Question 20, the applicant stated that he completed a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology from August 2013 to April 2017.

   e.In support of his visa application the applicant provided

   i.A Provisional Certificate from Anna University dated 11 May 2017 indicating that the applicant qualified or the award of Mechanical Engineering degree through Sri Krisha College of Engineering and Technology, Coimbatore.

   ii.A Consolidated Statement of Grades for the Bachelor of Mechanical Engineering examinations dated 15 April 2017

   iii.Statements of Grades for each academic between February 2014 and April 2017

   f.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 16 October 2017.

   g.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 Consolidated Statements of Grades were found to reflect identical subjects studied, in an identical order, with identical course outcomes (including credits, grade points and letter grades).

10. In his written response to the NOICC the applicant stated that his family valued quality education and he completed his studies in India. The applicant states that he applied for the visa through an agent and has no knowledge of providing bogus documents to the Department. The applicant stated that the information referred to by the Department was not true and does not reflect what he studied in India. The applicant states that he should not be held responsible for the incorrect information and bogus documents provided by an agent and the information did not come from him. The applicant states that he does not accept the blame. The applicant states that he could not check what information the agent gave and had not checked his application. Other students also obtained visas through the same agent and did not have any problems. The applicant states that he did not complete the forms and only signed the documents. The agent refused to accept that they fabricated information and he has not given any document to his agent to be provided to the Department.

11. The applicant told the Tribunal that he attended a different college and it was his agent who substituted the documents. The applicant said that after he received the Notice, he contacted the agency and learned about bogus documents.

12. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology as a result of study between 1 August 2013 and 30 April 2017. On the basis of this information, the Tribunal finds that the Provisional Certificate from Sri Krisha College of Engineering and Technology, the Consolidated Statement of Grades and the Statements of Grades Sheet from Sri Krisha College of Engineering and Technology, Coimbatore are bogus documents either 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 it is counterfeit or has 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.

13. 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 Mechanical Engineering at Sri Krisha College of Engineering and Technology, Coimbatore between August 2013 and April 2017. 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 submission that he did not provide the bogus qualifications to the agent or the Department and that it should be considered that 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, 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.

15. 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.

16. 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.

17. 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?

18. 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).

19. 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

20. The correct information is that the applicant did not attend Sri Krishna College of Engineering for the 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)

21. The Tribunal has found that the academic transcripts and the award qualification are bogus documents. The genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

22. The applicant claims that he completed his course at a different college, which he claims is also affiliated with Anna University.

23. Clause 476.212 requires that a visa applicant must be an engineering graduate and also that the qualification must be awarded by a prescribed university. Thus, consideration of the applicant’s qualification would have been central to the assessment of his eligibility for the visa.

24. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document. It is not necessary for the Tribunal to determine whether the applicant would have been entitled to the visa, if the correct information was known.

    The circumstances in which the non-compliance occurred

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.

26. The applicant told the Tribunal that the agent did not give him the documents to check and the agent did not give him the IMMI account number. Only after receiving the Notice, he obtained his own IMMI account and checked the website and realised that the information was false. The applicant said that he completed the form and signed it but thought the information on the form was changed by the agent. In his written submission to the delegate the applicant suggested that he signed a blank form. The applicant said that he trusted the agent because others obtained the visas through the same agency and he would not have made the application if he knew the information was false.

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 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. 

28. 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. In the Tribunal’s view, he had the responsibility to do so to ensure that any information that was being submitted on his behalf – and which he admits had been signed by him – was correct and accurate. It is not apparent that the applicant had taken any such steps and that he checked the completed application before its lodgement. 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 about the conduct of the agent.

    The present circumstances of the visa holder

29. The applicant states in his response to the NOIC that his family spent a large sum of money on his educaiotn and he wanted to makie his living from his study. If his visa is cancelled, he cannot study 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 applicant told the Tribunal that he wants to explore other visa options but also that he intends to return to India in April 2019 when his visa was due to expire. The Tribunal is not satisfied that the applicant genuinely intends to study in Australia and, if he does, he can make an application for a Student visa in the future.

30. The applicant claims in his submission to the delegate that his family and friends will discriminate against him 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 that would affect his socially. (The applicant did not pursue these claims in oral evidence to the Tribunal.) The Tribunal does not accept these submissions, given that the applicant only holds a visa until April 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 required to live his life or his interactions with friends and family. In the Tribunal’s view, the applicant is an independent adult and can choose to live his life in any way he desires.  As for the applicant’s claimed desire to study in Australia, as noted above, there is no evidence that the applicant had undertaken any steps to enrol in a course since his entry to Australia and before his visa was cancelled and if that is his genuine intention, the applicant may be eligible to seek a Student visa in the future.

31. In oral evidence the applicant states that his uncle lives in Australia and he lives with his uncle. He then said that he has been living away from his uncle for the past two months but his uncle has given him support. The applicant said that he was working in a factory as a process worker in the past but he no longer works because of his visa. The applicant states that he plans to return to India but he wants to ‘prove his innocence’ because it would otherwise be hard for him to get a visa for another country. The applicant states that he has not told his family about the cancellation and wants to stay in Australia for the remainder of his visa and then tell his family that his visa has expired.

    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 told the Tribunal that he has not done any harm to the community. He states that he attends church weekly and has made charitable contributions. Although the applicant presented no evidence of these activities, the Tribunal is prepared to accept that the applicant has made some contribution to the community.

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 there are restrictions on the type of visas the applicant can apply for 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 are no children who would be affected by the cancellation.

4. In his written submission to the delegate, the applicant refers to facing discrimination in his home country from parents and friends as a result of his visa being cancelled. In oral evidence the applicant states that his sister is a medical student and he needs to find ways to find money. He also told the Tribunal that he has mortgaged his home to get a loan. He could not explain how these matters would give rise to Australia’s protection obligations and the Tribunal does not consider that they do. The applicant told the Tribunal that his parents have more information but he is not aware of these things.

5. The Tribunal is not convinced that any of these matters give rise to Australia’s protection obligations. However, if the applicant believes that to be the case, he is eligible to seek a protection visa where his claims could be assessed.

6. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

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

7. The applicant states in his written submission 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 2019. The Tribunal is not satisfied that the applicant has a genuine intention to pursue study in Australia, given that he has not made any effort to enrol in a course or apply for a Student visa since entering Australia.

8. The Tribunal also acknowledges the applicant’s evidence that if his visa is cancelled, he may find it difficult to get visas to other countries. If that is the case, the Tribunal accepts that the cancelation of the visa may cause some hardship to the applicant.

9. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant had not complied with s. 101 and s. 103 of the Act. The Tribunal finds that the cancellation would not be in breach of Australia’s international obligations. There are no other known instances of non-compliance and no other breaches of the law. Close to a year and a half passed since the non-compliance.

10. The Tribunal accepts that certain hardship would be caused to the applicant as a result of the cancellation. In particular, the applicant will have limited options to pursue other visas in Australia and may be subject to an exclusion period if he were to make other visa applications. The applicant claims his visa applications to other countries may also be affected. The Tribunal acknowledges the applicant’s evidence about the financial hardship and his obligation to support his sister. However, while the Tribunal accepts that these circumstances may give rise to hardship, the Tribunal is also mindful of the fact that the visa in question is a temporary visa only and it would only be valid until the end of April 2019. The applicant would be required to make other arrangements to remain in Australia and to work beyond that date.

11. The Tribunal has rejected the applicant’s evidence that he would experience problems from his family or community if were to return to India. These claims appear to be claims put forward by the agent who prepared the applicant with his response to the NOICC and not the evidence of the applicant.

12. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s educational qualifications were central to determining his eligibility for the visa. The Tribunal has formed the view that the applicant could have taken more steps to monitor the application prepared by the agent and to ensure the correct information and genuine documents were submitted on his behalf. The applicant has not taken adequate steps to do so.

13. In the Tribunal’s view, the circumstances in which the non-compliance occurred, and the significance of the incorrect answers and bogus documents to the decision to grant the visa outweigh other considerations.

14. 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

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

    Kira Raif
    Senior Member