Shanmuga Sundaram (Migration)

[2019] AATA 2869

Shanmuga Sundaram (Migration) [2019] AATA 2869 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pradesh Kumar Shanmuga Sundaram

CASE NUMBER:  1829686

DIBP REFERENCE(S):  BCC2018/2432044

MEMBER:Kira Raif

DATE:21 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 21 February 2019 at 12:39pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – Subclass 476 (Skilled – Recognised Graduate) – providing bogus document and incorrect answer in visa application – widespread visa fraud involving engineering graduates – prescribed qualification from a prescribed institution – agent submitted a different qualification – employment offer in Australia – family financial difficulties – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 98, 100 – 105, 107 – 109, 111, 140, 4 PIC 4020, 2.41
Migration Regulations 1994, Schedule 2 cl 476.212; Schedule 4 Public Interest Criterion 4020; 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 December 1995. He was granted the Skilled Recognised Graduate Class VF visa on 12 December 2017. The visa was to be in effect until 30 September 2019. On 3 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 did not provide his response to the NOICC and his visa was cancelled on 4 October 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 February 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. 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 ss.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 27 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 Electronics and Communication Engineering at Dr Mahalingam College of Engineering and Technology at Pollachi 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 a Consolidated Statement of Grades issued by Dr Mahalingam College of Engineering and Technology for the grades obtained between January 2014 and May 2017.

   e.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 12 December 2017.

10. The Department undertook integrity checks regarding the applicant’s qualifications. The Department became aware of widespread visa fraud involving applicants claiming to be engineering graduates from Anna University and its affiliated universities providing bogus academic transcripts to fulfil the requirements for the grant of Subclass 476 visas. The Department’s investigation found that many academic results are identical in terms of dates and grades and that personal identities are being amended to tailor the academic transcripts to individual applicants.

11. The applicant’s Consolidated Statement of Grades has been matched against samples from other graduates claiming to have studied the same course at the same institution and was found to have identical scores, grades and dates as other applicants.

12. In his submission to the Tribunal of 6 December 2018 the applicant states that he graduated with a Bachelor of Electronics and Communication Engineering from SNS College of Technology (Anna University) in October 2017 and applied for the visa through LP Career Solutions. He provided his statement of grades and signed the form but had not provided bogus documents with the application. The applicant states that he paid 60,000 rupees to LP Career Solutions and gave genuine documents to the agency and he was not aware of the consequences. The applicant states that he did not graduate from Dr Mahalingam College. The applicant states that it was the agent who made the application and he is a victim. He signed the application and gave genuine documents and was not aware what the agent provided to the Department. The applicant states that the agent provided a false email address and he never received any emails from the Department. All correspondence went to the agent. He only came to know about the problem when his visa was cancelled. The applicant repeated these claims in oral evidence to the Tribunal.

13. The applicant provided a large volume of documents to the Tribunal on the morning of 19 February 2019, shortly before the commencement of his hearing. His representative explained to the Tribunal that they were awaiting the receipt of additional evidence but it was not available. It is unclear why that should delay the provision of the available evidence. The Tribunal notes that such late provision of evidence constitutes a failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Surendra Man Shrestha of the Australian Immigration and Citizenship Centre.

14. The applicant presented his academic papers from SNS College of Technology, general information about 476 visas and visa eligibility, what appears to be evidence of the applicant’s communication with his representative in India and evidence of payment, evidence of the loan arrangements, evidence of the applicant’s communication with La Trobe University in August 2017 and a media report about visa cancellations. The applicant presented medical evidence and evidence of other expenses relating to his family. The Tribunal has had regard to that evidence.

15. The applicant’s evidence indicates that he had not obtained a Bachelor of Engineering from Dr Mahalingam College of Engineering and Technology as a result of study between August 2013 and May 2017. The applicant’s evidence to the delegate and the Tribunal is that he completed a Bachelor of Engineering from SNS College and graduated in October 2017. On the basis of this information, the Tribunal finds that the Consolidated Statement of Grades issued by Dr Mahalingam College of Engineering and Technology for the grades obtained between January 2014 and May 2017 is 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 was altered by a person without the 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.

16. 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 Electronics and Communication Engineering at Dr Mahalingam College of Engineering and Technology at Pollachi between 1 August 2013 and 31 May 2017. The applicant’s evidence to the Tribunal is that he did not attend that institution. The Tribunal finds that the applicant completed his application form in a way that an incorrect answer was given. The Tribunal further finds that the applicant declared in his application form that the information provided in the application form was complete, correct and up-to-date. The Tribunal finds that this was also an incorrect answer.

17. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that it should be considered that it was the agent, and not him, who provided the bogus documents. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers and bogus documents was done without his knowledge or consent and that he is the victim. However, contrary to the applicant’s submission, 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 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.

18. 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.

19. 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?

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 Migration Regulations 1994. They are:

    The correct information

22. 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 an engineering degree from Dr Mahalingam College of Engineering and Technology. The applicant’s evidence is that he graduated with an engineering qualification from SNS College.

    The content of the genuine document (if any)

23. The genuine document would indicate that the applicant had not obtained the grades specified in the Consolidated Statement of Grades issued by Dr Mahalingam College of Engineering and Technology.

    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

24. 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 his eligibility for the visa.

25. Further, the applicant would have been required to meet PIC 4020 before he could be granted the visa and if it was known that the applicant gave information that was false or misleading in a material particular and a bogus document with his application, the assessment against PIC 4020 would have been more thorough. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document.

26. The applicant told the Tribunal that he completed an engineering course at SNS College which is affiliated with Anna University. However, the applicant did not rely on that qualification when seeking his visa. The applicant relied on the degree from Dr Mahalingam College which he did not hold. It is not necessary for the Tribunal to determine whether the applicant would have qualified for the visa if the correct information was known. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

27. The applicant claims that he did not know how to make an application and he had approached an agent in India to prepare his application. The applicant provided to the Tribunal evidence of his communication with the agent and of paying fees to the agent. The applicant said that he was not required to complete all the information on the forms and the agent completed the forms on his behalf, he only signed the form. The applicant states that he did not know about the provision of bogus documents until his visa was cancelled. He said he lodged complaints against the agent but these have been dismissed.

28. The Tribunal accepts that the application was prepared with the assistance of the agent. Despite that, the Tribunal is of the view that the applicant had the responsibility of checking the content of his application before its lodgement to ensure all answers were correct and that no bogus documents were provided with the application.

29. The Tribunal acknowledges the applicant’s evidence that he did not know how to prepare an application and had to rely on the agent. However, the issue here relates to the provision of personal information and not in relation to any complex legal issues. The Tribunal does not consider that any particular knowledge was required to enable the applicant to provide correct information and genuine documents in relation to his study or to check the application that was being submitted on his behalf. The applicant’s evidence to the Tribunal is that he did not check the content of the application because he trusted the agent. He said he asked the agent and the agent told him not to fill in the form because they wanted to check his qualifications and would lodge the form on his behalf because there could be no mistakes. The applicant said that everyone was doing the same. The Tribunal finds that evidence unconvincing. The Tribunal is not satisfied the applicant had taken any steps, let alone adequate steps, to check the content of the application. This is particularly problematic as the applicant had signed the forms and it was impossible for the applicant to ensure that the forms contained correct information unless he had taken any steps to check.

    The present circumstances of the visa holder

30. The applicant provided to the Tribunal evidence of a job offer dated August 2018. The Tribunal accepts that the applicant had been offered a job in Australia and had been working in Australia. The applicant told the Tribunal that his employer is willing to sponsor him for a visa but had not provided evidence of that. However, even if the applicant did produce a letter from his employer, and he had indicated to the Tribunal he would seek a letter from his employer, the Tribunal would not consider that to be sufficient. The applicant does not claim that his employer has commenced the process of nomination or sponsorship. There is insufficient evidence to satisfy the Tribunal that the company will in fact go ahead with the sponsorship and the nomination process, even if the company expresses an intention of doing so in the future. Until the process is commenced, there is no certainty that the nomination or sponsorship process will go ahead and there can be no certainty that such applications, if made, would be successful. The Tribunal is not satisfied on the evidence before it that the applicant will be able to obtain a sponsored visa in the reasonable future. Should the applicant wish to seek such a visa in the future, the Tribunal is mindful that he will be able to seek a waiver in relation to the exclusion period.

31. The applicant provided to the Tribunal evidence of having obtained a loan and evidence of his family’s financial circumstances. The applicant told the Tribunal that he has to support his family, he referred to his father’s medical condition and the need to support his grandparents. The Tribunal accepts that evidence. The Tribunal accepts that the applicant’s family may be dependent on him and that the applicant’s preference is to stay in Australia and to work in Australia. However, the Tribunal is mindful that the visa in question is a temporary visa. It does not permit the applicant to remain in Australia beyond the very limited period of its validity to September 2019 and it was never designed to give the applicant the option of establishing long-term residence in Australia. If that is the applicant’s intention, he is eligible to seek another visa, although the Tribunal acknowledges that there would be limitations in relation to future visa applications as a result of the cancellation.

32. The applicant provided to the Tribunal evidence of having approached La Trobe University prior to the cancellation of his visa. He explained to the Tribunal that he was initially considering a Student visa but later decided to apply for the Subclass 476 visa. There is no evidence of the applicant obtaining a letter of offer or accepting an offer of enrolment by the university. There is no evidence to show that the applicant had in fact engaged with the university beyond making the very basic inquiries. There is no evidence that the applicant enrolled in a course or that he commenced any study before his visa was cancelled. The applicant does not claim that he intends to study in Australia.

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

1. 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

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

   The time that has elapsed since the non-compliance

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

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

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

   Any contribution made by the visa holder to the community

5. The applicant told the Tribunal that he tries to contribute to an orphanage when he earns enough. He has not done it in Australia but had done it in India. The Tribunal is prepared to accept that the applicant had made contributions to the community in India. There is no evidence of the applicant making a contribution to the community in Australia.

6. 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 Procedures 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

7. 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.

   Whether there would be consequential cancellations under s.140

8. 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

9. There are no children affected by the cancellation.

10. The applicant told the Tribunal that he made a complaint against the agent three times but his cases were dismissed. He asked his father to make a complaint against the agent. The applicant said that the agent threatened his father that they would put a case against him but they had not done it until now. The applicant states that his father has been threatened at the police station and the agency has some political power.

11. The Tribunal does not accept the applicant’s claims. Firstly, there is very limited documentary evidence to support these contentions. The applicant refers to evidence of having made a complaint to the police but there is no evidence of any harassment or harm or threats made against the applicant or his father. Secondly, and significantly, the applicant made no mention of such claims in any of his previous dealings with the Department and the Tribunal. The applicant was given the opportunity to present evidence to the delegate in response to the NOICC. He presented a number of submissions to the Tribunal and made no mention of any threats of harm. In the Tribunal’s view, if the applicant’s claims were true, the applicant would have raised these prior to the hearing. The recent submission of these claims indicates that they are a recent invention.

12. Thirdly, the applicant had the opportunity to apply for a protection visa if he believes he would experience any harm in India but has not done so. He expressly told the Tribunal that he did not wish to apply for a protection visa. The applicant claims that he wanted to prove his innocence but it is unclear how that would assist him, given that the visa in question is a temporary visa only and even if the applicant was able to ‘prove his innocence’, that visa would not allow the applicant to remain in Australia and obtain Australia’s protection beyond September 2019. The applicant said that if he proves his innocence, he could apply for a visa to another country but the Tribunal does not accept that the applicant’s preference would be the uncertainty of a visa application to another country rather than an application for Australia’s protection, if he was genuinely fearful of any harm. For all these reasons, the Tribunal has formed the view that the applicant has not been truthful in his claims.

13. Finally, the Tribunal notes that the applicant is eligible to apply for a protection visa. If he genuinely believes he would be subjected to any form of harm or persecution in India, the applicant’s claims would be assessed as part of that application. The Tribunal finds that Australia’s protection obligations would not be breached as a result of the cancellation.

14. The applicant does not have any family in Australia and the family unity principles do not require his presence in Australia.

15. 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

16. The applicant refers to his family’s financial circumstances, including the loans. The applicant presented various documents to the Tribunal concerning the loans and his family’s expenses. He told the Tribunal that he must support his family and the various medical expenses and his family would be affected if he cannot work in Australia. The Tribunal is prepared to accept that the applicant has been providing financial support to his family and accepts that it would be affected if the applicant is not able to remain in Australia and work in Australia. However, as noted above, the Tribunal is also mindful that the visa in question is a temporary visa only and it would only permit the applicant to remain in Australia for a relatively short period.

17. The applicant told the Tribunal that when he applies for a job in a reputable company in the future, he will have difficulty finding a job because of the visa refusal and he will be unable to get a visa to another country because of the cancellation. The applicant has not presented any evidence of having applied for any jobs and of being rejected and his evidence to the Tribunal is that he has not applied for any jobs. In such circumstances, the Tribunal is not satisfied that the applicant will be denied employment in the future as a result of his visa being cancelled. As for other visa options, the Tribunal is unable to comment on visa processes in other countries.

18. The Tribunal accepts that the cancellation of the visa may affect the applicant’s future visa applications and the Tribunal accepts that hardship would be caused to the applicant as a result of the cancellation. The cancellation of the visa would also affect the applicant’s capacity to remain in Australia and to work in Australia and provide financial support to his family. The Tribunal accepts that the applicant’s capacity to provide financial support to his family may be affected. The Tribunal accepts that the applicant’s family has financial obligations and the applicant’s evidence is that his father cannot work. The Tribunal accepts that hardship to the family would result from the cancellation although the Tribunal is also mindful that the visa in question is a temporary visa only which would not permit the applicant to remain in Australia on a long-term basis.

19. The Tribunal has considered the totality of 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.

20. The Tribunal acknowledges that there are no other known instances of non-compliance and no known breaches of the law. The Tribunal has rejected the applicant’s claims about his fear of harm and has formed the view that the applicant has not been truthful in his evidence to the Tribunal in relation to these claims. The Tribunal has found that Australia’s international obligations would not be breached as a result of the cancellation.

21. The applicant repeatedly told the Tribunal that he is innocent, that he acted in good faith and it was not his intention to provide bogus documents and incorrect information and he has always been honest and should not be victimised in the Australian system. The Tribunal has accepted the applicant’s evidence that he relied on the agent to submit his application, however, the Tribunal has formed the view that the applicant has not taken adequate steps to ensure his application was correct and accurate. He has not checked the forms or the completed application. He had signed the forms without them being fully completed. The Tribunal does not consider that the applicant was entirely innocent because he has not done enough to monitor the application process. The Tribunal finds that the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect answers and a bogus document outweigh other considerations.

22. The applicant’s representative submits that there are issues of natural justice and jurisdiction and the Department should be made aware of these circumstances. It is not the role of the Tribunal to do so and the applicant is able to bring this matter to the attention of the Department or the Minister if he wishes to do so.

23. For the reasons stated above, the Tribunal has formed the view 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

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

    Kira Raif
    Senior Member