Seetha Raman (Migration)

[2019] AATA 3998

Seetha Raman (Migration) [2019] AATA 3998 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prasanna Seetha Raman

CASE NUMBER:  1911607

HOME AFFAIRS REFERENCE(S):           BCC2018/3864059

MEMBER:Kira Raif

DATE:21 June 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 21 June 2019 at 11:55am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) – Subclass 476 (Skilled – Recognised Graduate) – bogus documents – incorrect information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 116
Migration Regulations 1994 (Cth), Schedule 2 cl 476.212

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 8 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in December 1991. He was granted the Skilled Recognised Graduate Class VF visa on 9 November 2017. The visa was to be in effect until 16 June 2019. On 18 April 2019 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 8 May 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 June 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal is satisfied that the notice contains sufficient particulars to enable the applicant to identify and address the issues. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.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 Skilled visa in September 2017 and completed an application form.

   b.On page 8 of the application form the applicant stated that he holds a Bachelor of Civil Engineering from K.S. Rangasamy College of Technology at Tiruchengode, which he completed between August 2012 and April 2016.

   c.On pages 9 and 10 of the form the applicant completed a declaration that the information he provided in the form was complete, correct and up to date.

   d.The applicant included with his application an Educational Certificate confirming that he had been admitted to the Bachelor of Civil Engineering, having completed the prescribed program of study through K.S. Rangasamy College of Technology. The visa applicant also provided a consolidated statement of grades for study undertaken at K.S. Rangasamy College, dated 22 July 2017.

   e.The applicant was granted the Skilled visa on 9 November 2017 and he arrived in Australia on 16 December 2017.

   f.Enquiries by the Department found that educational certificates and consolidated statements of grades were found to be identical to those provided to the Department by a number of other applicants claiming to hold a Bachelor of Civil Engineering from K.S. Rangasamy College of Technology. In each case the subject grades, month and year of passing, credits and cumulative grade point average were an identical match and only the graduating persons’ names and dates of births had been changed.

10. In his written response to the NOICC the applicant states that he approached an agent, OBOE International to prepare his visa application and the agent told him that he met the eligibility criteria. The applicant states that the agent asked him to sign the application and not to complete the form, which was completed by the agent. The applicant thought this was part of the service provided by the agent. The applicant states that he had no intention to provide false information or to fabricate any evidence. He claims the agent changed his qualifications without his knowledge and did not consult with him. The applicant states that he had limited ability to check the agent’s work. The applicant states that the agent has been recently arrested for fraud and he provided to the delegate news items. The applicant states that he holds a Bachelor of Aeronautical Engineering from Anna University which he completed between 2009 and 2013 and a Master of Science in Automotive Engineering from Coventry University, UK, which he completed between 2014 and 2015 and he submitted these qualifications to the agent. The applicant states that the bogus documents were provided without his knowledge or consent. The applicant made the same submission in his oral evidence to the Tribunal.

11. The applicant’s evidence indicates that he had not obtained a Bachelor of Civil Engineering from K.S. Rangasamy College as a result of study between August 2012 and April 2016. On the basis of this information, the Tribunal finds that the Educational Certificate and the consolidated statement of grades dated 22 July 2017 are bogus documents either within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant, or within the meaning of s.5(b) because they are counterfeit or have 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.

12. The Tribunal further finds that on the application forms in response to questions about his qualifications, the applicant gave incorrect answers by stating that he had completed a Bachelor of Civil Engineering from K.S. Rangasamy College. The Tribunal finds that the applicant completed his application forms in a way that incorrect answers were given. The Tribunal further finds that the applicant declared in his application that the information provided in the application was complete, correct and up to date. The Tribunal finds that these answers were also incorrect.

13. The Tribunal acknowledges the applicant’s submission that he gave genuine documents to his agent and that it was the agent who provided incorrect documents without his knowledge. However, 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 of the Act states that ss.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.

14. 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, bogus documents or caused such documents to be so given, presented, produced or provided. He did not comply with s.103 of the Act.

15. 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?

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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. Briefly, they are:

    The correct information

19. The correct information is that the applicant did not obtain the Bachelor of Civil Engineering from K.S. Rangasamy College. The applicant’s evidence is that he holds a Bachelor of Aeronautical Engineering from Anna University and a Masters from Coventry University, which he believes comes under the Washington Accord.

    The content of the genuine document (if any)

20. The content of a genuine document would not show the applicant graduating from K.S. Rangasamy College with a Bachelor of Civil Engineering, and obtaining certain grades in that degree. The applicant holds a different degree from a different institution.

    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. 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 his eligibility for the visa for the purpose of cl.476.212 of Schedule 2 to the Regulations. The applicant provided incorrect answers in relation to the course he completed.

22. The applicant would have also been required to meet PIC 4020 of Schedule 4 to the Regulations 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.

23. The applicant states in his response to the NOICC and in his evidence to the Tribunal that the agent advised him that he did qualify for the visa and he claims that he does hold a degree from a gazetted university. However, the Tribunal notes that these are not the qualifications on which the applicant relied when seeking the visa.

24. It is not necessary for the Tribunal to determine whether the applicant would have been entitled to the grant of the visa if the correct information was known. The Tribunal finds 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. The applicant claims that he approached an agent and entrusted the application to the agent. The applicant claims that he gave genuine documents to the agent and was not aware of what the agent had submitted. The applicant states that the agent committed the fraud and he had no way to control the actions of the agent.

26. In oral evidence to the Tribunal the applicant said that he completed a Bachelor of Aeronautical Engineering in 2013 and then a Masters of Engineering in the UK. He was not sure if he qualified, so he approached an agent who told him that he could get the visa. The applicant said that he had done a background check on the agency, they had good reviews and he had no reason to doubt the agent. A friend of his also went through the same agency and was granted the visa.

27. The Tribunal accepts that the applicant had approached an agent and paid for the service. Nevertheless, the Tribunal is of the view that the applicant had both the responsibility and an opportunity 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 the applicant’s answers on multiple application forms and the applicant could have checked the forms before signing and before the application was submitted.

29. The applicant told the Tribunal that once he approached the agency, he signed the blank form and got the agency to complete the form on his behalf, which is common in India. The applicant said that he had no reason to doubt the agency and his friend was given the visa, so he was also confident. The applicant said that he did the same when he applied to study in the UK. He made a mistake to trust the wrong person. The Tribunal considers it problematic that the applicant would sign a form and a declaration about the accuracy of the information in the form without having any knowledge of its content.

    The present circumstances of the visa holder

30. The applicant told the Tribunal that he had obtained an education loan which he has to repay, and he paid almost $7000 to obtain the visa. The agent promised to get him a permanent visa and he cannot get the money back. His family had spent a lot of money to send him to Australia and he feels he let his family down. The applicant said that since coming to Australia he has been working and paying taxes. He wants to stay in Australia and repay the debt.

31. The Tribunal notes, however, that the applicant’s visa would have already expired, if it was not cancelled. The applicant said that he is happy to return to India and re-apply for another visa from offshore. The applicant said that a cancellation would be a black mark against him in the future. If his visa is reinstated, he plans to leave the country as soon as possible and return to India. He is yet to make any arrangements to do so.

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

32. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the above provisions.

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

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

    The time that has elapsed since the non-compliance

34. The application for the visa was made in September 2017. Approximately 21 months passed since the non-compliance.

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

35. There are no other known breaches of the law.

    Any contribution made by the holder to the community

36. The applicant referred to his employment and the payment of taxes when employed. The Tribunal accepts that evidence.

37. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

38. 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 will have limited opportunities to make visa applications onshore.

    Whether there would be consequential cancellations under s.140

39. 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

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

41. There is no evidence, and the applicant does not claim, 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

42. The applicant claims that he would find it difficult to find a job in India because he could not get an engineering job in Australia. The Tribunal is mindful that even if that is the case (and the applicant presented no evidence to support this claim), that would not be due to the cancellation of the visa but because the applicant has not been able to obtain a relevant job in his field in Australia. The applicant said that he would be questioned as to why he had not applied for a permanent residence in Australia. The Tribunal is mindful that the Subclass 476 visa is not a permanent visa and there could be no expectation that the Subclass 476 visa would enable the applicant to apply for a permanent visa or to remain in Australia permanently.

1. The applicant also claims that if he applies to go to any other country, he would be questioned about what happened in Australia and also his intention is to return to Australia. He wants to be able to reapply and does not want to wait for the exclusion period. He wants to apply at the earliest. The Tribunal is mindful that the applicant may be subject to PIC 4020 in relation to a future visa application for an Australian visa and it is not in dispute that the applicant has given, or caused to be given, information that was false or misleading, and a bogus document, in relation to his Subclass 476 visa. Thus, the applicant may be subject to an exclusion period whether or not his Skilled visa is reinstated. The Tribunal is not convinced that the outcome of this review would make significant practical difference to the applicant’s future visa applications.

2. The applicant also states that he may apply for a visa to another country and does not want to have a black mark against his name. Although there is very little evidence before the Tribunal on this issue, the Tribunal considers it possible that the cancellation of the Australian visa may affect future visa applications.

3. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 and s.103 of the Act and that there are grounds for cancelling his visa. The Tribunal is prepared to accept that some hardship can be caused to the applicant as a result of the cancellation because it may affect the applicant’s future visa applications and the applicant may be subject to an exclusion period in relation to such applications. With respect to the applicant’s desire to work in Australia and repay the debt, the Tribunal notes that the applicant’s visa would have already expired and in such circumstances, the Tribunal does not consider that it is the cancellation of the visa that would preclude the applicant from remaining in Australia and working in Australia. There are no other known instances of non-compliance and no other breaches of the law. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations.

4. The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. While the Tribunal accepts that the applicant relied on the services of an agent, and may have provided genuine documents to the agent, the Tribunal has formed the view that the applicant had not taken adequate steps to ensure that correct answers were given and that no bogus documents were provided with his application. The Tribunal also places greater weight on the fact that the decision to grant the visa was based, in part, on incorrect answers and bogus documents.

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Kira Raif
   Senior Member