Shaju (Migration)

[2019] AATA 835

Shaju (Migration) [2019] AATA 835 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tony Shaju

CASE NUMBER:  1827696

DIBP REFERENCE(S):  BCC2018/2431309

MEMBER:Kira Raif

DATE:24 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 24 January 2019 at 11:31am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – s. 107 non-compliance – bogus documents – academic qualifications – incorrect information in visa application – application prepared by migration agent – deliberate or inadvertent non-compliance – steps to ensure correctness of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 100, 101, 103, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 476.212

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 May 1994. He was granted the Skilled Recognised Graduate Class VF visa on 15 November 2017. The visa was to be in effect until 31 July 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 his response to the NOICC and his visa was cancelled on 19 September 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 24 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. 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 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 24 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 Dr Mahalingam College of Engineering and Technology at Pollachi between 1 August 2013 and 31 May 2017

   c.The applicant completed 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.In support of his visa application the applicant provided a Consolidated Statement of Grades (Academic Transcript) dated 20 May 2017 for a Bachelor of Engineering in Mechanical Engineering at Dr Mahalingam College of Engineering and Technology, which is affiliated with Anna University. It indicates the applicant achieved first class classification.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 15 November 2017.

   f.The integrity checks conducted by the Department indicate that the applicant’s Consolidated Statement of Grades contains identical scores, grades and dates as bogus academic transcripts provided by other applicants and the personal identifiers have been amended to match the applicant’s details.

10. In his written response to the NOICC the applicant stated that he completed a Bachelor of Engineering at Kalaivani College of Technology. He approached an agent about the opportunity to work overseas and was advised what documents he needed to provide. The applicant claims that he was not aware that bogus documents were submitted with his application. The applicant presented evidence of his communication with the agent, as well as evidence of his educational qualifications, including evidence of completion of a Bachelor of Engineering at Kalaivani College of Technology.

11. In oral evidence to the Tribunal the applicant said that this was the first time he was leaving India and he had no knowledge of how to apply for a visa, so he consulted an agency and was told that he was eligible for the visa. He gave them genuine documents but without his knowledge, the documents were substituted. The applicant conceded that he did not attend the Dr Mahalingam College.

12. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology as a result of study between August 2013 and May 2017.

13. On the basis of this information, the Tribunal finds that the Consolidated Statement of Grades from Dr Mahalingam College of Engineering and Technology dated 20 May 2017 is a bogus document either within the meaning of s. 5(a) because it purport 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.

14. 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 Mechanical Engineering at Dr Mahalingam College of Engineering and Technology between August 2013 and May 2017. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were 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 submission that he did not provide the bogus qualifications to the agent or the Department and that he was unaware of the fraud which 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 or consent. 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 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.

17. 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.

18. 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?

19. 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).

20. 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

21. The correct information is that the applicant did not complete the Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology, between August 2013 and May 2017. His evidence to the delegate and the Tribunal is that he completed a Bachelor of Engineering at Kalaivani College. The correct information is that the applicant has completed his qualification at a different institution and not the one he referred to in his visa application.

    The content of the genuine document (if any)

22. The Tribunal has found that the Consolidated Statement of Grades is a bogus document. A genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering at Dr Mahalingam 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

23. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant claims that he did not attend the prescribed institution.

24. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his 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.

25. The Tribunal acknowledges that the applicant may hold an engineering qualification from a different institution but that is not the qualification he relied on in his visa application. It is not necessary for the Tribunal to determine if the applicant could have been granted the visa if the correct information was known.

    The circumstances in which the non-compliance occurred

26. In his response to the NOICC the applicant states that after completing his study, he wanted to work overseas and approached an agent, Oboe International. The agent suggested a visa for Australia and explained the visa process to the applicant and requested certain documents, which the applicant provided. In oral evidence, the applicant told the Tribunal that he comes from a small town in India and nobody in his family had gone overseas and he was not familiar with migration procedures. The applicant told the Tribunal that he approached an agent and relied on the agent. He gave genuine documents to the agents but the agent substituted the documents without his knowledge or consent. The applicant said that he filled in the application form and the agent asked him for his signature, which he provided. The applicant said that even though he signed the form, he did not check it because he trusted the agent.

27. The Tribunal finds the applicant’s submission problematic. The Tribunal is of the view that the applicant had the responsibility 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 an answer on the application form and the applicant could have easily checked the form before signing it and before it was submitted. The applicant told the Tribunal that he did not read the form before signing because he trusted the agent. The applicant also said that he did not check his application before it was submitted.

29. In the Tribunal’s view, the applicant had the responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate. The applicant’s evidence is that he has not checked anything and signed the form without reading. The Tribunal finds that the applicant had not taken adequate steps to ensure the correctness of his application. The Tribunal is of the view 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

30. The applicant claims in his written submission to the delegate that his family had spent a large sum of money to enable him to travel to Australia. Although the applicant presented little evidence of that, the Tribunal is prepared to accept that obtaining the Australian visa would have required a significant financial contribution from the applicant. The applicant states that he travelled to Australia to gain experience in the field of mechanical engineering but the applicant has not presented any evidence of being employed in that field.

31. In oral evidence to the Tribunal the applicant said that he used to work as a process worker but stopped working once his visa was cancelled and he now relies on friends. The applicant states that he hopes to have a better future in Australia. The Tribunal accepts that evidence, although the Tribunal is mindful that the visa in question is a temporary visa only.

    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 16 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 known breaches of the law. The Tribunal acknowledges the applicant’s Indian police certificate.

    Any contribution made by the holder to the community.

36. The applicant told the Tribunal that he helps his neighbours with lawn mowing and he gave someone a lift. The applicant has not presented any other evidence of having made a contribution to the community.

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 applicants from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that exclusion periods may apply and that there are only limited categories of visas the applicant can seek in Australia.

    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.

41. The applicant told the Tribunal that the ‘agency people’ may do something to him because he exposed what the agent did. The applicant has not been able to offer a convincing explanation of what the agent may do to him, or why, given that the information about the fraud has been reported in the media and is in the public domain. The applicant said that he was not sure what, if anything, could happen to him and whether the agents have any resources to do anything. The Tribunal finds the applicant’s claims to be extremely vague and the Tribunal is not satisfied that the applicant has a genuine fear of persecution. However, if he does, the Tribunal is mindful that the applicant is eligible to make an application for a protection visa where those claims would be assessed.

42. 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

43. The applicant refers to the expenses associated with coming to Australia. The Tribunal accepts that evidence. The applicant told the Tribunal that hopes for a better future and his life would be affected by the cancellation. He would be subject to an exclusion period. The applicant told the Tribunal that he is the first-born and his family relies on him. He has not accomplished anything. The Tribunal notes that the visa in question is a temporary visa only which would expire in July 2019 and it unclear how staying in Australia for another six months would help the applicant accomplish anything more.

1. The applicant told the Tribunal that wanted to have his skills recognise and perhaps make an application for a Student visa, which he cannot do now. The Tribunal accepts that the cancellation of the visa may affect the applicant’s future visa applications, at least in the immediate future. However, the Tribunal is mindful that the applicant had been living in Australia for close to a year before his visa was cancelled and the applicant has not taken any steps to make that application. The applicant told the Tribunal that he wanted to explore the Australian environment and the Tribunal is of the view that the applicant had time to do that, as well as make preparations for a future visa application, if he did have the intention of making such an application. The applicant told the Tribunal that he has not taken any steps towards his Student visa or another visa application, such as arranging finances and paperwork. The Tribunal is not satisfied that the applicant had a genuine intention of pursuing a Student visa, although as noted above, the Tribunal accepts that if the applicant does plan to seek another visa in Australia in the future, the cancellation of the visa would affect the applicant’s migration status and future visa applications.

2. The Tribunal has considered the entirety of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant has not complied with s.101 and s.103 of the Act.

3. The Tribunal accepts that some hardship would be caused to the applicant as a result of the cancellation because the applicant’s preference is to remain in Australia and perhaps seek another visa and the cancellation will affect a future application and the applicant may be subject to an exclusion period. The Tribunal also accepts that the applicant and his family had spent significant funds to enable the applicant to travel to Australia and that the applicant may be disappointed that he has ‘not achieved’ anything.

4. There are no other known instances of non-compliance and no other breaches of the law. Over a year passed since the non-compliance. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

5. The Tribunal places weight on the circumstances in which the non-compliance occurred. The Tribunal has formed the view that the applicant had not taken adequate steps to ensure his application was correct. He expressly told the Tribunal that he did not ask to check the application and signed the form without reading it. The Tribunal also places weight on the fact that the decision to grant the visa was based on incorrect information and a bogus document. In the Tribunal’s view, such maters outweigh other considerations.

6. 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

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

   Kira Raif
   Senior Member