Selvaraj (Migration)

[2019] AATA 1492

Selvaraj (Migration) [2019] AATA 1492 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hariprasanth Selvaraj

CASE NUMBER:  1829026

DIBP REFERENCE(S):  BCC2018/3720540

MEMBER:Kira Raif

DATE:30 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 30 January 2019 at 12:49pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) – Subclass 476 (Skilled – Recognised Graduate) – agent provided bogus documents – visa as result of these documents – non-compliance with conditions – significant weight on bogus documents –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 98, 101-105, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41, Public Interest Criterion (PIC) 4014, 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 November 1995. He was granted the Skilled Recognised Graduate Class VF visa on 21 November 2017. The visa was to be in effect until 20 June 2019. On 9 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 her response to the NOICC and his visa was cancelled on 2 October 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. The applicant requested the Tribunal to take oral evidence from his friend who ‘knows his situation’. The Tribunal has considered the request but decided not to speak to that witness because the Tribunal fully accepts the applicant’s evidence about the circumstances in which the non-compliance occurred and his present circumstances. 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 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?

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 8 October 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 Civil Engineering at Anna University between 17 June 2013 and 19 April 2017.

   c.The applicant signed a ‘declaration for all applicants’ as part of the application form confirming that he provided complete and correct information in every detail on the form and any attachments.

   d.The applicant also completed Form 80 in which he stated that he completed a Bachelor of Civil Engineering at Anna University in April 2017.

   e.In support of his visa application the applicant provided

   i.A provisional certificate from Anna University dated 10 July 2017 certifying that the applicant qualified for the Bachelor of Engineering (Civil)

   ii.A consolidated Statement of grades from Anna University (Bannari Amman Institute of Technology) dated 10 July 2017.

   f.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 21 November 2017.

   g.Validation checks conducted by the Department indicate that the applicant’s Consolidated Statement of Grades has been shown to be identical to those provided to the Department by other persons claiming to be graduates of Anna University. In each case, the subject grades, dates of completion, credits and cumulative grade point average are an identical match. Only the graduate’s personal details (names, dates of birth and photos), the registration number and the folio number have been changed but the documents are identical in all other respects.

   h.The Department decision record indicates that in March 2017 a staff member of the overseas post met with the Controller of Examinations at Anna University who provided the Department officer with samples of genuine provisional certificates issued by the university. The applicant’s provisional certificate was compared to the genuine provisional certificate issued by the university. It was found that the applicant’s provisional certificate did not match the genuine sample provided by Anna University, specifically the border on the applicant’s certificate did not match the genuine sample.

10. In his written response to the NOICC the applicant stated that he did complete a Bachelor of Civil Engineering at Anna University and did not know why the documents he gave to his agent were not lodged with the application and why other documents were used. The applicant provided copies of his provisional certificate and the consolidated statement of grades which were not the documents submitted with the application. These show that the applicant obtained a Bachelor of Civil Engineering at Chettinad College of Engineering and Technology.  

11. In his submission to the Tribunal of 23 January 2019 the applicant states that he completed secondary schooling in 2013 and then attended the Chettinad College of Engineering and Technology for the Bachelor of Civil Engineering. That college is affiliated with Anna University. He states he completed the course in April – May 2017 and started to look for jobs abroad. He learned about 476 visas and thought he met the requirements. He made inquiries from a number of agencies and completed his English test. He chose Blueslang Academy as his agent because of their fee structure and submitted his educational documents to the agency. The applicant states that the agency did not use his own email but created a new one and he did not know about the Immi account. After he received the Notice, he realised that the agent gave information about the different college and he does not know how it happened. The applicant provided to the Tribunal evidence of his qualifications and evidence of his interactions with the agent.

12. In oral evidence to the Tribunal the applicant stated that he did study at Anna University between 2013 and 2017. The applicant stated that he used an agent to apply for the visa and gave all the originals to the agent. He does not know why the agent submitted different documents. The applicant confirmed that he attended a different institution and did not attend Bannari Amman Institute but he studied at Chettinad College of Engineering.

13. The applicant’s response to the NOICC and his evidence to the Tribunal indicates that the applicant did not attend Bannari Amman Institute. The Tribunal finds that the Consolidated Statement of Grades which the applicant submitted with the application 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, 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. Further, the information set out in the primary decision record indicates that the Provisional Certificate which the applicant presented with the application appears different to the genuine documents issued by that institution. The Tribunal reasonably suspects that the Provisional Certificate from Anna University, which accompanied the application, is a bogus document either because it purports to have been, but was not, issued in respect of the person or because it is counterfeit or has been altered by a person who does not have authority to do so.

14. 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.

15. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that he was unaware why the agent provided documents that were different to what he had given to the agent. The Tribunal acknowledges the applicant’s evidence that the provision of 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.

16. 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 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 bogus documents.

17. 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.

18. The Tribunal acknowledges an allegation received in January 2019 about the provision of false documents. The Tribunal informed the applicant of the allegation in the course of the hearing. The Tribunal is mindful that the information that is the subject of the allegation is set out in the primary decision, the applicant is aware of the adverse information through the NOICC and he provided his comments on adverse information. The applicant concedes that bogus documents were submitted with the application. In such circumstances, the Tribunal places no weight on the allegation and considers it entirely irrelevant to the review.

19. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

21. 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

22. The applicant claims that he did obtain a Bachelor of Civil Engineering at Anna University. He provided documents to the Tribunal relating to his study at that institution. However, in his application the applicant not only refers to his study at Anna University but he also referred to his study at Bannari Amman Institute of Technology. The correct information is that the applicant did not study at that institution. 

23. The delegate’s decision sets out the comparison of the educational documents which were presented with the application and in response to the NOICC (which are the same documents the applicant presented to the Tribunal). The applicant’s testamur shows that he obtained a Second Class degree whereas the Provisional Certificate provided with the application refers to the First Class degree. The applicant also received a cumulative grade point average of 6.29 whereas the Consolidated Statement of Grades submitted with the application refers to the cumulative grade point average of 7.29.

    The content of the genuine document (if any)

24. The Tribunal has found that the Consolidated Statement of Grades and the Provisional Certificates are bogus documents as these do not match with the documents the applicant subsequently submitted to the delegate and the Tribunal which he claims to be genuine, and also because the applicant admits he did not study at Bannari Amman Institute of Technology. The genuine documents would show that the applicant obtained an Engineering degree from a different Institute with different marks.

    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

25. The applicant claims that he did complete an engineering degree from Anna University and graduated in 2017. The applicant provided evidence of his studies to the delegate and the Tribunal. However, in his visa application the applicant did not refer to Chettinad College of Engineering. He relied on the Consolidated Statement of Grades from Bannari Amman Institute of Technology. It is that qualification the applicant relied on to obtain the visa.

26. The Tribunal finds that the decision to grant the visa was based on the bogus documents. It is not necessary for the Tribunal to determine if the applicant would have been granted the visa if the correct information was known.

    The circumstances in which the non-compliance occurred

27. In his responses to the NOICC and his evidence to the Tribunal the applicant states that he approached an agent to help him with the visa application and provided documents to the agent and he was unware that the agent submitted other documents. However, the delegate notes in the primary decision that the applicant had not identified any agent when completing the form.

28. The applicant told the Tribunal that he comes from a village and did not know the legal requirements. After finishing his degree he saw an advertisement for the Australia visas, so he approached an agent. The applicant said that his family was not strong financially, so he found the agent, gave originals to the agent and signed the form. The agent then submitted the application and he paid the final fee after the visa was granted. The applicant said that he cross-checked the form on the phone with the agent.

29. The Tribunal finds the applicant’s submission problematic. 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. The applicant explained to the Tribunal that he comes from a village and was not familiar with the visa requirements and that is why he trusted the agent. The Tribunal is mindful that despite his background, the applicant was able to complete a tertiary qualification. The Tribunal does not consider that the applicant’s background prevented him from checking the application and the papers that were being submitted on his behalf. The applicant’s failure to do so suggests that he was either complicit in the actions of the agent, or indifferent to his agent’s misconduct.

    The present circumstances of the visa holder

30. The applicant states in his written evidence that as the only child, he has responsibility for his parents. He describes in his submission to the Tribunal that he has substantial debts associated with his education and the visa process and also due to the living expenses in Australia. The Tribunal accepts that this may be the case. The applicant states that he has found it difficult to find a professional job and has been working as a cleaner and has been supporting his parents financially. The applicant repeated this evidence in his oral evidence to the Tribunal. The Tribunal accepts that evidence and accepts that if the visa is cancelled, the applicant may be unable to maintain his employment, repay his loan and provide financial support to his parents unless he is granted another visa.  

31. The applicant states in his submission to the Tribunal that he wants to apply for an MBA but his Student visa application raised issues with PIC 4020 and the college refused to issue him the refund. The applicant refers to the financial hardship. The applicant told the Tribunal that he wants to clear his name before leaving the country so he does not have a three year ban.

32. The applicant told the Tribunal that he did not have any experience and came to Australia after graduating. He wanted to do a course in Australia to improve his experience and learn to Australian standards. Alternatively, he can earn some money and return to India to have his own business. The applicant said that he was hoping to do an MBA but withdrew his application for the Student visa after receiving a Natural Justice letter in relation to PIC 4020.

33. The applicant states that he has been living in Melbourne for a year and has friends and neighbours and follows rules and regulations. The Tribunal is prepared to accept that evidence.

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

34. 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

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

    The time that has elapsed since the non-compliance

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

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

37. There are no known breaches of the law.

    Any contribution made by the holder to the community.

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

1. 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

2. If the applicant’s visa is cancelled, and 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 that the applicant has limited options if he was to apply onshore.

3. The applicant told the Tribunal that he wants to apply for a Student visa but would be subject to a three year exclusion period and PIC 4020. The applicant requested the Tribunal to waive PIC 4020 in relation to the Student visa. The Tribunal has no power to waive PIC 4020 and even if the present cancellation is set aside and the exclusion period imposed by PIC 4014 does not apply, the applicant would still be required to meet PIC 4020. The Tribunal notes, however, that PIC 4020 applies as a result of the applicant submitting bogus documents in relation to his Skilled visa application and not as a result of the cancelation of his visa.

   Whether there would be consequential cancellations under s.140

4. There are no persons whose visas would be cancelled 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.   

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

6. In oral evidence to the Tribunal the applicant said that he told other students that the agent cannot be trusted, so the agent is losing money because of him. The applicant states that the agent has political connections and he is scared of the agent. The applicant states that he is the only son and he cannot defend himself. The applicant said that he is not sure if the agent would do anything to him.  

7. The Tribunal finds the applicant’s claims unpersuasive. Firstly, the applicant presented no evidence of having spoken against the agent and of the agent having shown any interest in him. There is no evidence of any threats or harm otherwise. The Tribunal is not required to unquestioningly accept the applicant’s claims.

8. Secondly, and significantly the applicant made no mention of this situation in any of his past submissions to the delegate and the Tribunal. The applicant provided a response to the NOICC and various submissions to the Tribunal. The applicant referred to having a representative at least in some of his interactions with the Department or the Tribunal. The applicant had ample opportunity to present evidence of his claimed fear of harm. He has not done so. It appears to be a recent invention and the Tribunal does not accept the applicant’s evidence. 

9. The applicant ultimately told the Tribunal that he is not fearful of harm but his concern is that he has a loan which he has to repay and he has not achieved anything in Australia and has a black mark against him. The Tribunal does not consider that these matters give rise to Australia’s protection obligations.

10. However, even if the applicant genuinely believes he may be harmed upon return to India, for any reason, the Tribunal notes that the applicant is eligible to make an application for a Protection visa where these claims would be assessed. There is nothing preventing the applicant from making that application

11. 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

12. The applicant refers to the hardship that he may experience as a result of not being able to work in Australia. The applicant refers to the debt he incurred due to his travel to Australia and the Student visa application process and states that he cannot repay his debts. The Tribunal is prepared to accept that if the applicant’s visa is cancelled, he may not be able to work in Australia and that may affect his financial situation. The Tribunal is mindful, however, that the visa in question would only be valid until June 2019 and unless the applicant is granted another visa, he would be expected to leave Australia. That is, the period of the applicant’s employment in Australia would be quite limited. Nevertheless, the Tribunal accepts that the applicant may experience financial hardship and may be unable to support his family overseas and repay his debts if he is not able to work in Australia. 

13. The applicant states that the three year exclusion period would be unfair and too harsh he also claims that PIC 4020 should be waived because he has not done anything wrong. The Tribunal notes, in relation to PIC 4020, that it is not in dispute that the Skilled visa application was accompanied by bogus documents, so that a decision to set aside the cancellation on discretionary grounds would not affect the application of PIC 4020. The applicant argues that PIC 4020 should not be imposed on him but the Tribunal has no power to waive PIC 4020 when dealing with the present cancellation.

14. The applicant told the Tribunal that if his visa is cancelled, he would be banned from Australia and other countries for three years. He claims that he has not done anything wrong and it was the agent, so the punishment would be too harsh for what was done. The Tribunal acknowledges that the applicant may be subject to an exclusion period in relation to future Australian visas, although the Tribunal is mindful that there is a waiver provision in relation to the application of the exclusion period. The Tribunal cannot comment in relation to visa requirements for other countries. The Tribunal is prepared to accept that visa restrictions would cause some hardship to the applicant as he prefers to live and work overseas.

15. The applicant told the Tribunal that his parents obtained a mortgage for the land, he comes from a farming family and they have no money. He obtained a loan which he must repay. The Tribunal accepts that reinstatement of the visa would enable the applicant to work for a further five months. The applicant states that he has not gained anything by being in Australia. It is unclear how the applicant will ‘gain anything’ by having his visa reinstated. The visa in question is a temporary visa only which would not allow the applicant to stay beyond June 2019. If the applicant’s intention is to obtain the Student visa, his evidence to the Tribunal is that he had made that application, the application was going to be refused because of PIC 4020 and he withdrew the application. That is unlikely to change whether or not the present cancellation is set aside.

16. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 103 of the Act and that there are grounds for cancelling his visa.

17. The Tribunal accepts that considerable hardship may be caused by the cancellation, including financial hardship, because the applicant will not be able to remain in Australia and work in Australia. The applicant will also have limited opportunities to make other visa applications and he would be subject to an exclusion period. The Tribunal accepts that the applicant’s family may be dependent on him financially.

18. There are no other known instances of non-compliance and no known breaches of the law. The Tribunal acknowledges that time has passed since the non-compliance.

19. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and there are no consequential cancellations. The Tribunal places significant weight on the fact that the decision to grant the visa was based on bogus documents. Even though the applicant claims he holds a degree from Anna University, he relied on a different qualification when making the visa application. The Tribunal has also formed the view that the applicant had not taken adequate steps to ensure that the content of his application was correct and that no bogus documents were submitted on his behalf.

20. 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

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

    Kira Raif
    Senior Member