Sankar (Migration)

[2019] AATA 474

Sankar (Migration) [2019] AATA 474 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vignesh Sankar

CASE NUMBER:  1831230

DIBP REFERENCE(S):  BCC2018/3956530

MEMBER:Kira Raif

DATE:11 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 11 February 2019 at 9:30am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – Subclass 476 (Skilled – Recognised Graduate) – providing fraudulent document and incorrect answer with visa application – prescribed qualification from a prescribed institution – bogus academic transcript – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 101-105, 107, 109, 140, 362, 379
Migration Regulations 1994, Schedule 2 cls 476.212; 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 August 1994. He was granted the Skilled Recognised Graduate Class VF visa on 8 November 2017. The visa was to be in effect until 29 June 2019. On 4 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 24 October 2018. The applicant seeks review of the delegate’s decision.

3. On 29 November 2019 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 11 February 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.

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 with s.379A(5), the invitation has not been returned to sender. 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 19 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 Kongu Engineering College at Erode between 1 August 2013 and 31 May 2017.

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

    d.In support of his visa application the applicant provided

    i.A provisional certificate issued on 22 June 2017 by Anna University which states that the applicant was awarded a Bachelor of Mechanical Engineering in May 2017 and qualified for the award through Kongu Engineering College, which is an autonomous college affiliated to Anna University

    ii.Academic transcripts (statement of grades) issued by Kongu Engineering College between April 2014 and May 2017.

    e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 8 November 2017.

    f.The Department had undertaken integrity checks of the applicant’s qualifications. These checks indicate that the applicant’s transcripts contain identical scores, grates and dates as bogus academic transcripts submitted by other applicants with personal identifies having been altered to match the applicant’s details.

11. In his written response to the NOICC the applicant referred to ‘one more fraud case’ by another person who, the applicant claims, has ‘done the same thing’. While the applicant does not expressly address the issues raised in the NOICC, the applicant’s reference to the same fraud perpetrated by another person suggests the applicant’s acknowledgement that his own application included fraudulent information and the applicant’s awareness of that.

12. The applicant does not explain the similarities between his own papers and other students’ academic papers. Having regard to the information set out in the primary decision record, the Tribunal finds that the applicant did not attend the educational institution referred to in his application. The Tribunal reasonably suspects that the Provisional Certificate from Anna University / Kongu Engineering College and the academic transcripts are bogus documents within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant or within the meaning of s. 5(b) because they are counterfeit or had 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 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 Kongu Engineering College between 1 August 2013 and 31 May 2017. The Tribunal finds that the applicant completed his application form in a way that incorrect answer was given.

14. 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?

15. 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).

16. 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

17. The correct information is that the applicant did not attend the stated institution for the degree that is identified in his application. He did not obtain a Mechanical Engineering degree from Kongu Engineering College.

    The content of the genuine document (if any)

18. The genuine document would indicate that the applicant had not obtained the grades specified by Kongu Engineering 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

19. 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 her eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.

    The circumstances in which the non-compliance occurred

20. The applicant has not explained the circumstances in which the non-compliance occurred.

    The present circumstances of the visa holder

21. The applicant did not provide information about his present circumstances in his response to the NOICC or to the Tribunal.

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

22. 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

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

    The time that has elapsed since the non-compliance

24. 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

25. There are no known breaches of the law. The Tribunal acknowledges the applicant’s Indian police certificate.

    Any contribution made by the holder to the community.

26. The applicant has not presented any evidence of having made a contribution to the community.

27. 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

28. 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

29. 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.   

30. There is no evidence that any children would be affected by the cancellation.

31. There is no evidence, and the applicant has not claimed, that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

32. 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

33. The applicant has not raised any other matters and has not outlined what hardship may be caused as a result of the cancellation.

34. 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. There are no other breaches of the law and no other non-compliance. The cancellation would not affect another person and would not breach Australia’s international obligations. The Tribunal acknowledges that some time has passed since the non-compliance. The applicant has not presented evidence that hardship would be caused to him as a result of the cancellation.

35. The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect information as the assessment of the applicant’s qualifications was central to his eligibility for the visa. In the Tribunal’s view, that fact outweighs other considerations.

36. 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

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

    Kira Raif
    Senior Member