RAVI (Migration)

[2019] AATA 1608

RAVI (Migration) [2019] AATA 1608 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJKAMAL RAVI

CASE NUMBER:  1825662

DIBP REFERENCE(S):  BCC2018/2417864

MEMBER:Kira Raif

DATE:15 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 15 January 2019 at 11:39am

CATCHWORDS
MIGRATION – Cancellation – Skilled (Provisional)(Class VF) – Subclass 476 (Skilled Recognised Graduate) – engineering studies – bogus documents – incorrect answers – issues with migration agent – applicant complicit in actions of agent – negligent and recklessly indifferent in dealing with agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 48, 100, 101, 103, 107, 108, 109, 111, 140, 362B, 379A(5)
Migration Regulations 1994(Cth), r 2.41, cl 476.212, PIC 4020

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of India, born in June 1995. He was granted the Skilled Recognised Graduate (Subclass 476) visa on 2 November 2017. The visa was to be in effect until 8 June 2019. On 7 August 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and her visa was cancelled on 28 August 2018. The applicant seeks review of the delegate’s decision.

3. On 8 November 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 15 January 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance withs.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   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 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?

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 12 September 2017.

    b.On Page 8 of the application form, in response to a question about his education qualifications, the applicant stated that he completed a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology at Coimbatore between 1 August 2013 and 30 April 2017.

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

    d.In support of his visa application the applicant provided a Statement of Grades for the Bachelor of Mechanical Engineering from Anna University through Sri Krishna College of Engineering and Technology, stating that he was awarded a Bachelor of Mechanical Engineering and dated April 2017.

    e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 2 November 2017 and he entered Australia on 8 December 2017.

    f.The Department undertook integrity checks regarding the applicant’s qualifications. The integrity check identified that the applicant’s Consolidated Statement of Grades dated 15 April 2017 contained identical scores, grades and dates as bogus academic transcripts provided by other applicants and the personal identifies have been made to match the visa holder’s details.

11. In his written response to the NOICC the applicant states that he completed his graduation from SNS College of Technology in 2016. After he learned about 476 visas, he approached an agent who told them what documents were needed. He signed some papers and presented the required documents. The applicant states that he did not know that the agent had changed the certificates until he received the NOICC. The applicant provided with his written submission evidence of having completed a Diploma of Electronics and Communication Engineering issued by the State Board of Technical Education and Training at Chennai, Tamil Nadu. The applicant also presented a Transfer Certificate from SNS College of Technology indicating he undertook a degree in Electronics and Communication Engineering at that institution between 2013 and 2016. The applicant presented a Provisional Certificate from Anna University Chennai relating to a degree in Electronics and Communications Engineering.

12. The applicant’s evidence indicates that he graduated from the SNS College of Technology in 2016 and not the Sri Krishna College of Engineering and Technology in 2017. Further, the applicant presented to the delegate evidence of having completed a Bachelor of Electronics and Communications Engineering and not Bachelor of Mechanical Engineering.

13. On the basis of the applicant’s response to the NOICC, the Tribunal finds that that the Statement of Grades relating to the Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology was a bogus document within the meaning of s. 5(a) because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, a bogus document or caused such a document to be so given, produced or provided.

14. The Tribunal further finds that on Page 8 of the application form, in response to a question about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology between 1 August 2013 and 30 April 2017. The applicant’s evidence in response to the NOICC is that he did not attend that institution, did not obtain that qualification and his actual period of study was different. The Tribunal finds that the applicant completed his application form in a way that an 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.

15. The Tribunal acknowledges the applicant’s evidence that he approached an agent LP Career Solutions and provided genuine documents to the agent and that he was unaware that the agent provided different information in his application until he received the NOICC. However, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s. 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 attended a different educational institution and not the one he referred to in his visa application. He completed his study in a different period and obtained a degree different to the one specified in his application.

    The content of the genuine document (if any)

21. The genuine document would not indicate that the applicant obtained his educational qualification from Sri Krishna College of Engineering and Technology at Coimbatore.

    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 presented to the delegate evidence of having completed an Engineering degree from SNS College of technology. However, the legislation requires that an applicant must be an engineering graduate, and also that the qualification must be awarded by a prescribed university – see cl. 476.212. Thus, consideration of the applicant’s qualification would have been central to the assessment of his eligibility for the visa.

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 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. The applicant claims in his response to the NOICC that he learned about the subclass 176 visas and approached LP Career Solutions to help him with the visa. He was asked to provide certain documents by the agent and to sign some documents and the agent lodged the application.

26. The Tribunal finds the applicant’s submission unpersuasive. The applicant had both the responsibility and ample opportunities to learn what evidence was being submitted on his behalf by the agent. The applicant could have made inquiries with the agent, particularly before the application was made, and he could have made a request to check the entire application before its lodgement. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application form and the applicant could have easily checked the form before it was submitted. The applicant states in his submission to the delegate that he signed ‘some documents’. He could have asked to check the documents before signing. It is not apparent that the applicant had taken any such steps. The Tribunal finds that the applicant was either complicit in the actions of his agent or that he was negligent in his actions and recklessly indifferent in his dealings with the agent.

    The present circumstances of the visa holder

27. In his response to the NOICC the applicant states that he arrived in Australia in December 2017 and from that time he has been working for a reputed company and gaining experience in his field. He has been paying taxes and is financially stable. There is little other evidence before the Tribunal about the applicant’s present circumstances. There is no documentary evidence about the applicant’s present employment or the payment of taxes.

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

28. 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

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

    The time that has elapsed since the non-compliance

30. The application for the visa was made in September 2017. Approximately 16 months passed since the non-compliance.

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

31. There are no known breaches of the law.

    Any contribution made by the holder to the community.

32. The applicant refers to his employment and payment of taxes. As noted above, the applicant provided no documentary evidence concerning present employment and the payment of taxes. The applicant does not claim to have made any other contribution to the community.

33. 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

34. 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 they 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 future applications may be subjected to the restrictions in s. 48 and an exclusion period.

    Whether there would be consequential cancellations under s.140

35. 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.   

36. There is no evidence before the Tribunal to indicate that there are any children affected by the cancellation. There is no evidence that Australia’s non-refoulement obligations would be breached as a result of the cancellation. 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

37. The applicant refers to his residence in Australia and the fact that he has been employed in his field since entering Australia. The Tribunal acknowledges that evidence and accepts that certain hardship would be caused to the applicant by the cancellation, including possible loss of employment and income in Australia. However, the Tribunal is mindful that the visa in question is a temporary visa only that would not permit the applicant to remain in Australia indefinitely or even long-term. The visa was due to expire in June 2019. At that time, unless the applicant is granted another visa, he would be expected to depart Australia, which would require him to terminate his employment.  

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

39. The Tribunal accepts that the cancellation of the visa would cause some hardship to the applicant because it may lead to loss of employment and, unless the applicant is granted another visa, the applicant would be required to leave Australia. Despite that, the Tribunal places weight on the fact that the visa in question is a temporary visa which is only valid for nine months and the applicant would have been required to make alternative arrangements to be able to remain in Australia.

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

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

2. 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

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

   Kira Raif
   Senior Member