Rajaram (Migration)

[2019] AATA 608

Rajaram (Migration) [2019] AATA 608 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ragupathy Rajaram

CASE NUMBER:  1835237

DIBP REFERENCE(S):  BCC2018/3956557

MEMBER:Kira Raif

DATE:27 February 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 27 February 2019 at 11:03am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled - Recognised Graduate) – s. 107 non-compliance – bogus documents – academic transcript – incorrect information in visa application – application prepared by migration agent – inadequate steps to ensure correctness of application – financial hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of India, born in June 1995. He was granted the Skilled Recognised Graduate Class VF visa on 20 November 2017. The visa was to be in effect until 14 October 2019. On 29 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 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 27 February 2019. 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

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. 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 29 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 Electrical and Electronics Engineering at Kongu Engineering College at Perundurai between September 2012 and April 2016

   c.In support of his visa application the applicant provided a Consolidated Statement of Grades issued by Kongu Engineering College for the Bachelor of Engineering.

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

   e.The Consolidated Statement of Grades has been matched against samples from other graduates claiming to have studied the same course at the same institution. The document was found to have identical scores, grades and dates as other graduates.

10. In his written response to the NOICC the applicant states that he attended Anna University in Chennai and graduated with a Bachelor of Electrical and Electronics Engineering in April 2016. The applicant states that after graduation, he learned that he could get an Australian visa and he checked his eligibility and completed a language test. He did not know what to do, so he approached an agent to prepare his visa application. He provided the agent with genuine education documents and signed the form and paid a fee to the agent. The applicant states that he did not make that mistake and he does not know why the agent submitted bogus documents. The applicant states that he has spent a lot of money on the visa which he cannot repay. The applicant provided to the delegate and subsequently to the Tribunal evidence of his Indian qualifications, evidence of his interactions with the agent and other documents.

11. In oral evidence the applicant told the Tribunal that he completed an engineering degree from Dahanalaxmi Engineering College, which was affiliated with Anna University. The applicant confirmed in oral evidence that he did not attend Kongu Engineering College and did not obtain the Bachelor of Electrical and Electronics Engineering from Kongu Engineering College as a result of study between October 2012 and April 2016. The applicant studied at a different institution, although he claims to have obtained the Bachelor of Electronic and Electrical Engineering.

12. On the basis of this information, the Tribunal finds that the Consolidated Statement of grades from Kongu Engineering College is a bogus document either within the meaning of s. 5(a) because it purports to have been, but was 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 Electrical and Electronic Engineering at Kongu Engineering College. The applicant did not attend that institution. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given.

14. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that the fraud was committed 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. 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. They are:

    The correct information

20. The correct information is that the applicant did not attend Kongu Engineering College to obtain his tertiary qualifications. His evidence to the delegate and the Tribunal is that he graduated from Dahanalaxmi Engineering College. The correct information is that the applicant has completed a qualification at a different institution 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 Consolidated Statement of Grades is a bogus document. A genuine document would not indicate that the applicant obtained an Engineering degree at Kongu College.

    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. To be granted the visa, the applicant was required to complete a prescribed type of qualification at a prescribed institution. Information and documents about the applicant’s educational qualifications were central to assessing her eligibility for the visa for the purpose of cl. 476.212.

23. Further, the applicant would have been required to meet PIC 4020 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.

24. The Tribunal acknowledges the applicant’s claim that he completed an engineering course at an institution that was affiliated Anna University and that he has genuine documents. The Tribunal provided evidence of his studies to the delegate and the Tribunal. However, it is not necessary for the Tribunal to determine whether the applicant would have been entitled to be granted the visa, if that information was available to the delegate. The question before the Tribunal is whether the decision to grant the visa was based on incorrect information, not whether the applicant would have able to obtain the visa. The Tribunal has found that the decision to grant the visa was based, wholly or partly, on incorrect information and a bogus document.

    The circumstances in which the non-compliance occurred

25. In his response to the NOICC, a copy of which the applicant presented to the Tribunal, the applicant states that after completing his study, he learned about the Australian visa and checked that he was eligible for it, but was not sure how to prepare the application, so he approached an agent. The applicant states that he gave the agent the genuine documents, signed the forms and paid the fees but did not know that the agent would provide bogus documents.

26. In oral evidence the applicant told the Tribunal that he completed an engineering degree from Dahanalaxmi Engineering College, which was affiliated with Anna University. He checked the eligibility and saw that he qualified for the visa but because he did not know how to make the application, he approached an agent and gave the agent all the documents that they requested. He also signed the form and emailed the signed form to the agent. The applicant states that he did not know the documents were changed until he received the NOICC. The applicant states that nobody in his family could give him advice and he trusted the agent because they helped other students. The applicant confirmed that he only signed one page of the form and did not see the rest of the form and did not check the application.

27. The Tribunal accepts that the applicant had approached an agent and paid for the service and instructed the agent to make the application on his behalf. 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 results but also an answer on the application forms. The applicant told the Tribunal that he had signed the last page of the form without reading the form. In the Tribunal’s view, the applicant could have asked to check the form before signing and before the application was submitted. 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.

29. The applicant told the Tribunal that this was first foreign travel and he did not know what to do. However the issue here is not concerned with complex or legal concepts. The Tribunal does not consider that any special knowledge would have been required to enable the applicant to check the content of his application or of the form.

30. The Tribunal finds that the applicant had not taken adequate steps to ensure the correct information and genuine documents were submitted on his behalf.

    The present circumstances of the visa holder

31. The applicant states in his response to the NOICC and evidence to the Tribunal that he wants to stay in Australia to be able to repay the loan. He provided to the Tribunal bank statements which appear to evidence the loan. The Tribunal accepts that the applicant had obtained a loan and accepts his evidence that he had spent a considerable sum to be able to travel to Australia. The applicant told the Tribunal that he cannot return home and wants to stay in Australia. The applicant told the Tribunal that he could not return to India for his sister’s wedding and there was also a death in his family. He wants to stay in Australia and does not want to return to India unless he knows he can return to Australia. The Tribunal is mindful that the applicant never held a permanent visa or even a long term visa. The Subclass 476 visa is a temporary visa to enable the applicant to live in Australia for 18 months. His visa is due to expire in October 2019. The applicant may be able to apply for other visas in the future but until such visas are granted, the applicant can have no expectation of being able to live in Australia.

32. The applicant told the Tribunal about the financial hardship and reliance on friends and his desire to work in Australia. He presented no evidence to support these claims.

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

33. 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

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

    The time that has elapsed since the non-compliance

35. 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

36. There are no known breaches of the law.

    Any contribution made by the holder to the community.

37. The applicant has not presented any evidence of having made a contribution to the community and told the Tribunal that he ‘did not do anything’.

38. 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

39. 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 there will be restrictions on applications the applicant is able to make in Australia.

    Whether there would be consequential cancellations under s.140

40. 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.   

41. There are no children who would be affected by the cancellation. The applicant has no family in Australia.

42. The applicant states that he cannot return to India because the borrowed a lot of money and has not earned enough to repay his loan. The applicant told the Tribunal that he has been threatened because of the money he has borrowed. He then said his father had been threatened but he himself has not been threatened but the applicant said he would be if he returns to India because the person will want his money back. The Tribunal is mindful that the applicant presented no evidence of having borrowed money from anyone other than the bank (there is evidence of a bank loan), and there is no evidence of any threats. The applicant said there is no evidence of money being borrowed because they live in a rural area. In the absence of any evidence of a personal loan, let alone of any threat, the Tribunal does accept the applicant’s claims.

1. The Tribunal also considers it significant that the applicant made no mention of any threats in his dealings with the Department or the Tribunal prior to the Tribunal hearing. The applicant was given an opportunity to respond to the NOICC and provide information concerning these issues and he made no mention of any threats. He also provided written submissions to the Tribunal with no mention of any threats prior to the Tribunal hearing. The applicant first told the Tribunal that he did not know how to respond but the Tribunal does not accept that evidence, given that the applicant did provide his written response to the NOICC and also written evidence to the Tribunal. He then said that he hoped his application would be successful, which should not have precluded the mention of the threats. The Tribunal has formed the view that the applicant’s reference to the threat of harm is a recent invention and rejects his claims.

2. In any case, the Tribunal notes that the applicant is eligible to make an application for a protection visa where his claims would be assessed. If it is found that the applicant is owed Australia’s protection, he may be granted a protection visa.

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

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

4. The applicant refers to the substantial loan he arranged to be able to come to Australia and states that he cannot repay it. The applicant states that the cancellation of the visa would affect his future. The applicant presented to the Tribunal some financial records and the Tribunal is prepared to accept that the applicant may have paid a fee to the agent and arranged a bank loan. The Tribunal is prepared to accept that financial hardship may be caused to the applicant as a result of his visa being cancelled.

5. The applicant told the Tribunal that he likes Australia and wants to live in Australia and bring his family to Australia. The Tribunal is mindful that the applicant has never held a permanent visa and has not applied for one. The applicant has no right, and can have no expectation, of being able to live in Australia. The applicant told the Tribunal that he intends to apply for a Student visa but there is no evidence that the applicant had made any effort to make such an application or to obtain an offer of enrolment. The applicant told the Tribunal that he did not have enough money to apply for a Student visa before and he wanted to work first. He said he plans to work for a few months before applying for a Student visa. The applicant has not presented any evidence of having the capacity to apply for a Student visa. He told the Tribunal that he has no money to pay his rent and to repay the loan and at present he has no permission to work. The applicant said he could get a bank loan but was unable to explain how he could get the loan if he has no assets and on his own evidence, has significant debts. The applicant then said that he plans to work in the future and also get financial help from friends. The applicant presented no evidence of having friends who would be willing, and have the capacity, to pay the applicant’s tuition fees and other expenses associated with the Student visa and his life in Australia. The Tribunal is not satisfied on the evidence before it that the applicant has a genuine intention of pursuing studies in Australia or that he will apply for a Student visa, even if his Skilled visa was reinstated. The Tribunal does not consider that in the applicant’s circumstances, his inability to apply for a Student visa or to pursue studies in Australia would amount to hardship to the applicant.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant provided a bogus document with his application and gave incorrect answers on the application form. The Tribunal has found that the applicant did not comply with ss. 101 and 103 of the Act and that there are grounds for cancelling his visa.

7. The Tribunal accepts that the cancellation would cause some hardship to the applicant and his family, primarily because the applicant will be unable to remain in Australia and work in Australia and because his future visa options may be affected. In particular, the Tribunal accepts that there will be financial implications as a result of the applicant being unable to work in Australia. The Tribunal acknowledges that time has passed since the non-compliance, that there are no other known instances of non-compliance or breaches of the law. The Tribunal has rejected the applicant’s claims that he would be subjected to harm upon return to India and found that Australia’s international obligations would not be breached as a result of the cancellation.

8. The Tribunal accepts the applicant’s evidence that he relied on the services of an agent to make his application and acknowledges his evidence that he was unaware of the provision of a bogus document and false information. However, the Tribunal finds it problematic that the applicant had taken no steps to check his application and the correctness of the information that was being submitted on his behalf. He admits to signing a blank form. The Tribunal has formed the view that the applicant had not taken adequate steps to ensure the correctness of his application. The Tribunal also places weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents and while the applicant submits that he does have the right qualification from the right institution, that is not the qualification he relied on.

9. The Tribunal finds that the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information and bogus document outweigh other considerations.

10. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member