Pushparaj (Migration)

[2019] AATA 387

Pushparaj (Migration) [2019] AATA 387 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nithesh Pushparaj

CASE NUMBER:  1831580

DIBP REFERENCE(S):  BCC2018/3722836

MEMBER:Kira Raif

DATE:14 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 14 February 2019 at 12:45pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – Subclass 476 (Skilled – Recognised Graduate) – providing fraudulent documents and incorrect answers with visa application – provisional certificates issued by the applicant’s university – Australian university approved support for business plans – conducting scientific research of benefit to a regional area – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 98, 100-105, 107, 109, 111, 140
Migration Regulations 1994, Schedule 2 cls 476.212; r 2.41; PIC4020

CASES

MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration [2018] FCAFC 52  

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 visa applicant is a national of India born in July 1996. He was granted the Skilled Recognised Graduate Class VF visa on 20 November 2017. The visa was to be in effect until 30 May 2019. On 2 October 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 23 October 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 February 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 set aside.

   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 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 30 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 between 1 August 2013 and 30 May 2017.

   c.The applicant signed a declaration on the application form confirming that the information he provided in the form was complete, correct and up to date.

   d.The applicant completed Form 80 in which he stated that he completed a course in Mechanical Engineering at Dr Mahalingam College of Engineering and Technology

   e.In support of his visa application the applicant provided

   i.A Provisional Certificate issued by Anna University on 22 June 2017 stating that the applicant qualified for an award of the degree through Dr Mahalingam College of Engineering and Technology, Pollachi, an autonomous college affiliated to Anna University. The Certificate refers to a Bachelor of Engineering First Class completed in May 2017 and has a register number.

   ii.a Consolidated Statement of Grades issued by at Dr Mahalingam College of Engineering and Technology on 25 May 2017.

   iii.Grade Sheets dated between December 2013 and April 2017 referring to the Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology.

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

   g.Information in the primary decision record indicates that

   i.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.

   ii.Dr Venkatesan advised that Anna University is comprised of University Departments and affiliated institution which may be autonomous or non-autonomous. Open source information on the Anna University website confirms that Dr Mahalingam College is an autonomous institution affiliated with Anna University.

   iii.Dr Venkatesan provided the Immigration officer with samples of genuine Provisional Certificates issued by the university including those issued to Anna university graduates and those graduating from affiliated institutions. The Provisional Certificate submitted by the applicant with his application was compared to the genuine samples provided by Dr Venkatesan. It was found that the applicant’s provisional certificate does not match a genuine sample provided by Anna University. In particular, the applicant’s certificate does not have a green background found on the genuine certificate.

   iv.Dr Venkatesan’s signature on a public document dated 1 November 2011 is different to the signature on the applicant’s Provisional Degree Certificate. Further, the applicant’s provisional certificate is dated on 22 June 2017, after Dr Venkatesan took up the role of Controller of Examinations. However, the signature on the applicant’s certificate is not that of Dr Venkatesan.

   h.The applicant’s Consolidated Statement of Grades has been closely matched against samples from other applicants who claim to have studied the same course at the same time at the same institution. Comparison of the applicant’s document and the other person’s document shows that the date of issue, credits, letter grades, grade opint and month / year of passing for all the courses listed on the visa holder’s document are identical to those on the other sample. Only the registration numbers, roll numbers and graduate’s personal details have been changed but the documents are otherwise identical.

   i.The grade sheets submitted by the applicant had been matched with a sample provided to the Department by another applicant. When compared, it was found that each of the eight Grade Sheets were identical in every respect other than serial numbers, roll numbers and the graduate’s personal details. This included instances when students were required to reappear for examinations.

10. In his written response to the NOICC and his evidence to the Tribunal the applicant stated that he completed a Bachelor of Aeronautical Engineering at Anna University in April 2017. He approached an agent, Shea Immigration Services 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. The applicant states that it was the agent, and not him, who provided fraudulent documents by the Department and he had no knowledge of the fraudulent documents as he only submitted genuine documents with his application. The applicant provided copies of his educational papers to the Department and indicated that he was able to have these verified by Anna University. The applicant provided to the Tribunal evidence of his overseas study, career episodes and evidence of professional membership in India. The Tribunal acknowledges that evidence.

11. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering but rather a Bachelor of Aeronautical Engineering at a different institution. 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 in relation to the Bachelor of Mechanical Engineering 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. The applicant’s evidence in response to the NOICC is that he 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.

13. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without his knowledge or consent and that he was a victim of the agent’s conduct. The applicant states that he did not provide bogus documents or incorrect answers on the form. However, contrary to the applicant’s submission, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate or done knowingly. 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 and bogus documents.

14. In his submission to the Tribunal the applicant (who claims to be unrepresented) refers to the reasoning in Singh v Minister for Immigration [2018] FCAFC 52 in relation to the application of PIC 4020 and fraud by a third party. He states that he did not collude with the agent and did not provide bogus documents himself. The Tribunal does not consider the reasoning in relation to PIC 4020 to be applicable or relevant to a cancellation under s. 109, particularly in light of the provisions such as s. 98 and s. 100.

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 Regulations. They are:

    The correct information

19. The correct information is that the applicant did not attend the stated institution 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)

20. The genuine document would indicate that the applicant had not obtained the qualification and the grades specified in the academic papers issued by 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

21. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa.

22. The applicant provided a number of documents to the Tribunal and the Department concerning his professional qualifications and membership. The Tribunal accepts that the applicant may have completed an engineering degree from an institution that is affiliated with Anna University. In oral evidence the applicant told the Tribunal that his university was not recognised by the appropriate authority in India, so his degree would not have qualified for the grant of the visa. The applicant admits that he would not have qualified for the visa on the basis of the genuine degree. The applicant states that the agent misled him and he believed the agent that his qualifications were sufficient.

23. 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

24. In his responses to the NOICC and in his evidence to the Tribunal the applicant states that after completing his study, he wanted to work overseas and approached an agent, Shea Immigration Services Pvt Ltd. The agent suggested a visa for Australia and requested certain documents, which the applicant provided. The applicant provided to the Tribunal an extract from an article relating to visa cancellations. The Tribunal acknowledges that evidence and accepts that the applicant had approached an agent to assist him with the application.

25. In his written submission to the Tribunal dated 20 January 2019 the applicant also claims that once he heard about the subclass 476 visas, he approached Shea Immigration and they advised him about the visa requirements. He paid the fee to the agent and was asked to complete certain parts of the form and he was told that the agent would complete the remaining details. The agent later informed him that the visa was granted. The applicant states that the agent created the email address and did not use his genuine email address. He was shocked to learn about the cancellation and the bogus documents as he was unaware of the agent’s activity and is a victim of the agent’s fraud.

26. The Tribunal finds the applicant’s submissions problematic. The primary decision record indicates that the applicant provided his own email address as a contact address in his application and not the contact details of any agent. The delegate found that the applicant would have personally accessed the Department’s online facility to lodge and monitor the progress of his application. The applicant stated on the form that he did not receive assistance in completing the form and he did not authorise any other person to act on his behalf. Importantly, the primary decision record indicates that the applicant signed Form 80 and that signature matches the signature in his passport. All of these factors indicate that the applicant had considerable involvement in making the visa application and contradict his claim that he fully relied on the agent and had little or no involvement with his visa application.

27. The Tribunal acknowledges the applicant’s evidence of his interactions with Shea Immigration Services and evidence of payment. The Tribunal is prepared to accept that the applicant did receive assistance from Shea Immigration Services, even if such assistance was not declared in the form. It is also possible, in the Tribunal’s view, that the agent made up an email address without the applicant’s knowledge. 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. 

28. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application forms and the applicant could have easily checked the forms before signing and before the application 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 had been signed by him – 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

29. In his response to the NOICC the applicant states that he has been employed in Australia and has been awarded an Employee of the Month award. He was offered a permanent position as a CNC Machine operator. The applicant also states that he plans to start a business and create jobs in Australia and that the cancellation of his visa would affect his career. The applicant told the Tribunal that he planned to make an application for permanent residence and was preparing his application to Engineering Australia. The applicant provided evidence to the Tribunal concerning his employment and his future aspirations. The Tribunal accepts that evidence, although the Tribunal is mindful that the visa held by the applicant is a temporary visa only which is due to expire in May 2019. That visa would not able him to remain, and work permanently in Australia.

1. The applicant states that he would experience financial hardship if his visa is cancelled because he supports his family and is paying various debts. The applicant told the Tribunal that his family relies on him as he is the only person working. The Tribunal is prepared to accept that evidence.

2. The applicant provided to the delegate a character reference and also character references to the Tribunal. The Tribunal acknowledges that evidence. In his written submission to the Tribunal the applicant states that he has been diligent and focused in his career and being ‘duped’ by an agent had affected his life. He has been affected by stress and anxiety and his sleep had been affected. The applicant presented no medical evidence to support these claims.

3. In oral evidence to the Tribunal the applicant outlined the steps he had taken to get support for his business ideas. The applicant states that he has approached a number of universities and received approved from the University of Adelaide and Flinders University. The applicant presented to the Tribunal evidence from these institutions. He states that with the positive response from the universities, he will be able to get approval from the State government of South Australia and make an application for the Subclass 408 visa. The applicant outlined the process requires to obtain that visa and the steps he has already taken before his visa was cancelled, to be able to make such an application. The applicant states that nobody would show any interest in scientific research in India but here his ideas are well received.

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

4. Nothing adverse is known about the visa holder’s subsequent behaviour in relation to the above provisions.

   Any other instances of non-compliance by the visa holder known to the Minister

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

   The time that has elapsed since the non-compliance

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

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

7. There are no known breaches of the law.

   Any contribution made by the holder to the community.

8. The applicant has not presented any evidence of having made a contribution to the community. The applicant outlines his future employment and business plans stating that his work could contribute to the community and will result in employment opportunities for Australians. He presented evidence suggesting there is some interest in his research from the Australian organisations. While it is not apparent that the applicant has made a contribution to the community, the applicant’s evidence indicates that the applicant may be able to make a contribution in the future through his research.

9. 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

10. 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 although the Tribunal acknowledges that the applicant may have limited options to make an application onshore.

    Whether there would be consequential cancellations under s.140

11. 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.   

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

13. The applicant told the Tribunal that the agent has some political connections and high influence. They made hundreds of thousands of dollars on using fraudulent documents. The applicant states that his friends had approached the police but the police do not want to get involved and would not take the case. (The applicant does not claim that he himself had approached the police.) The applicant states that if the agent would know that he provided evidence against them, the agent may harm him.

14. The Tribunal does not accept the applicant’s evidence. The applicant presented no evidence to support his claims. There is no evidence of any connection between Shea Migration and any political parties or affiliations. There is no evidence of the applicant or any of his friends attempting to lodge a complaint against the agent and being refused. The Tribunal is not required to accept the applicant’s claims unquestioningly.

15. Further, the Tribunal is also mindful that the applicant has not raised any of these matters in his dealings with Immigration in response to the NOICC or prior to the hearing, despite providing a number of submission and supporting evidence. In the Tribunal’s view, if the applicant was genuinely fearful of any harm or persecution, he would have mentioned these matters in his response to the NOICC and his earlier evidence to the delegate and the Tribunal. The timing of these claims suggests that these are a recent invention.

16. The Tribunal also notes that the applicant is eligible to make an application for a protection visa where such claims would be assessed. 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

17. The applicant provided to the Tribunal a number of character references. The Tribunal accepts that the applicant is well regarded by others.  

18. The applicant told the Tribunal that he is not concerned about the present visa and is ready to return to India. He also states that he planned to apply for another visa but his concern is with the exclusion period. The applicant provided to the Tribunal arguments concerning the application of PIC 4020 and the waiver provisions applicable to PIC 4020. The Tribunal finds these unhelpful as the decision under review does not relate to a visa refusal under PIC 4020. The applicant states that he is ready to return to India and he requested the Tribunal to waive PIC 4020. As the Tribunal explained to the applicant in the course of the hearing, it has no power to do so in the context of reviewing the decision to cancel the applicant’s visa.

19. The applicant states in his submission to the Tribunal that he plans to apply for permanent residence in Australia and has commenced the process (which appears to contradict his evidence that he is ready to return to India). The applicant states that he plans to undertake his entrepreneur career in Australia and has received positive feedback from Australian universities. The Tribunal is mindful, however, that the visa in question is a temporary visa which does not permit the applicant to remain in Australia permanently or even long term. It is not designed to enable the applicant to pursue a long term career in Australia. If the applicant wishes to do so, he would need to make an application for a more suitable visa. The Tribunal acknowledges that the applicant may be subject to an exclusion period in the immediate future in relation to some visa applications, although also notes that in some circumstances, that period may be waived. The Tribunal accepts that hardship would be caused to the applicant by the cancellation because a cancellation of the visa may affect the applicant’s ability to live and work in Australia, provide financial support to his family, pursue employment and entrepreneurial aspirations and affect his future visa applications, at least in the immediate future.

20. The applicant states that the cancellation of the visa would preclude him from travelling to other countries and he plans to visit the US to support his company. The Tribunal is unable to comment on the visa requirements for other countries but acknowledges the possibility that the applicant’s future visa applications may be affected by the cancellation.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had provided incorrect answers on the application form and gave bogus documents with his application concerning his study. There are grounds for cancelling his visa.

22. The Tribunal places significant weight on the fact that the applicant’s study was central to the assessment of his eligibility for the visa. The decision to grant the visa was based on incorrect information and bogus documents. While the applicant claims all that was done by an agent, the Tribunal has formed the view that the applicant had not taken adequate steps to ensure the information contained in his application was correct and that there were no bogus documents. In the Tribunal’s view, there are strong reasons why the visa should be cancelled.

23. There are no other known instances of non-compliance. Close to a year and a half passed since the non-compliance. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations. The Tribunal acknowledges that hardship would be caused to the applicant by the cancellation. The Tribunal accepts that the cancellation of the visa would have significant effect on the applicant’s ability to remain in Australia, work and pursue other visas, at least in the immediate future. The Tribunal acknowledges the applicant’s aspirations to run a business and his claims that he could be of benefit to Australia.

24. The Tribunal places weight on the fact that the applicant has taken meaningful steps to be able to seek an alternative visa that would enable him to live in a regional area and conduct scientific research that may be of benefit to a regional area. The applicant’s activities appear to attract approval from Australian educational institutions and the applicant believes he would be nominated by the State government for the relevant visa. The Tribunal is satisfied that prior to the cancellation of his visa the applicant had taken steps to engage with the Australian agencies and become eligible for another visa. The Tribunal is satisfied the applicant has a genuine intention of seeking another visa. The Tribunal is mindful that if the visa is cancelled, the exclusion period may prevent the applicant from being able to make such an application in the immediate future.

25. In the particular circumstances of this case, the Tribunal has decided that the applicant should have the opportunity to pursue another visa application, which he can do if his visa is reinstated.

26. 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 not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

    Kira Raif
    Senior Member