Somasundaram (Migration)

[2019] AATA 2423

Somasundaram (Migration) [2019] AATA 2423 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sri Harei Somasundaram

CASE NUMBER:  1901901

DIBP REFERENCE(S):  BCC2018/4026069

MEMBER:Kira Raif

DATE:15 April 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 15 April 2019 at 3:33pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional)(Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – bogus documents - incorrect information –– complicit in the fraud or at least aware of it ––not taken adequate steps to ensure correct answers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 102, 103, 104, 105, 107, 109, 111, 140
Migration Regulations 1994, Schedule 2, r 2.41, 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 March 1996. The applicant was granted the Skilled Recognised Graduate Class VF visa on 20 December 2017. The visa was to be in effect until 27 June 2019. On 16 November 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 24 January 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 April 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 Skilled Recognised Graduate Subclass 476 visa on 7 October 2017.

   b.On page 8 of the application form the applicant stated, with respect to his overseas qualifications, that he completed a Bachelor of Electronics and Communication Engineering at Dr Mahalingam College of Engineering and Technology at Pollaci between August 2013 and May 2017.

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

   d.The applicant presented with his application

   i.a number of Statements of Grades issued by Dr Mahalingam College of Engineering and Technology between June 2015 and July 2017

   ii.a Consolidated Statement of Grades dated 10 August 2017

   iii.a Provisional Certificate issued by Anna University on 16 September 2017. 

   e.On the basis of this information, the applicant was granted the Subclass 476 visa on 20 December 2017.

10. The Department’s investigations show that the applicant’s Consolidated Statement of Grades was identical to those provided by other visa applicants in terms of subjects, grades, month and year of passing and grade point average. Only the personal details such as names, dates of birth, photos and roll numbers have been changed but in other respects the documents are identical.

11. In his submission to the delegate dated 1 November 2018 the applicant stated that he approached an agent, Smart Dart International to prepare his visa application. After he obtained a copy of his application in Australia, he noticed several incorrect answers. The applicant provided Notifications of Incorrect Answers (Form 1023) noting that some of the personal details had been incorrect. The applicant also indicated that information about his study was incorrect. He stated that he completed an Automobile Engineering course between June 2014 and May 2017. The applicant also indicated that he used an agent in his application.

12. The applicant included with his submission a number of documents relating to his study towards a Bachelor of Automobile Engineering at Dr Mahalingam College of Engineering and Technology.

13. The applicant repeated these claims in his submission to the Tribunal of 11 April 2019. The applicant states that he did hold an engineering degree from Dr Mahalingam College and believed he was eligible for the visa. He approached an agent to prepare the application for him and did not check the application. It was not until after he came to Australia that he realised what the agent has done. The applicant provided to the Tribunal copies of his qualifications and other personal materials.

14. In oral evidence to the Tribunal the applicant confirmed that he holds a Bachelor of Automobile Engineering and not a degree in Electronics and Communications Engineering. The applicant told the Tribunal that that he approached an agent and gave genuine documents to the agent. It was only after the cancellation that he learned that the agent provided incorrect answers.

15. The applicant’s evidence indicates that he had not obtained a Bachelor of Electronics and Communication Engineering from Dr Mahalingam College of Engineering and Technology as a result of study between August 2013 and May 2017. The applicant claims to have obtained a diffferent engineering degree from Dr Mahalingam College. On the basis of this information, the Tribunal finds that various Statements of Grades, the Consolidated Statement of Grades from Dr Mahalingam College Engineering and Technology and the Provisional Certificate from Anna University are bogus documents either within the meaning of s. 5(a) because they purports 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.

16. 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 Electronics and Communications Engineering at Dr Mahalingam College of Engineering and Technology between 2013 and 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.

17. 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 that the applicant provided the Notification of Incorrect Answers prior to being issued with the NOICC and had provided what he claims to be correct information. The Tribunal also 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.

18. 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.

19. 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.

20. 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?

21. 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).

22. 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

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

    The content of the genuine document (if any)

24. The applicant told the Tribunal that he holds an Automobile Engineering degree. The Tribunal found the Statements of Grades, the Consolidated Statement of Grades and the Provisional Certificate to be bogus documents. Genuine documents would not indicate that the applicant obtained a Bachelor of Electronics and Communications 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

25. 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.

26. 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 bogus documents 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 bogus documents.

27. The Tribunal acknowledges the applicant’s claim that he completed an engineering course at Dr Mahalingam College, which may be an institution affiliated with Anna University. The applicant provided evidence of his studies to the delegate and the Tribunal and claims that if these documents were submitted, he would have been entitled to the visa. However, it is not necessary for the Tribunal to determine whether the applicant would have been entitled to be granted the visa, if that information was available to the delegate. The applicant did not rely on the genuine documents and correct answers when making the application. The question before the Tribunal is whether the decision to grant the visa was based on incorrect information, not whether the applicant would have able to obtain the visa if he did something different. The Tribunal has found that the decision to grant the visa was based on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

28. The applicant claims that he approached an agent, Smart Dart International to prepare his application. The applicant states that it was only when he obtained a copy of his file with the assistance of an agent in Australia that he saw incorrect information. He concedes that he did not make sure the information provided by his agent in India was correct. 

29. In oral evidence, the applicant said that he considered many agencies and approached Smart Dart International who promised to help him with accommodation and jobs, which was not done. The applicant states that he paid $9000 for the visa and it was only after coming to Australia that he knew the visa fee was much lower.

30. The applicant told the Tribunal that he was preparing for the English test and he did not have time to prepare the documents or read the form before signing. The Tribunal does not accept that it would have taken the applicant more than a few minutes to read the form and the Tribunal does not accept that the applicant could not find the time to read the form. The applicant’s evidence is that he did not read the form before signing it because he trusted the agent. The Tribunal does not consider it reasonable for the applicant to have signed a statement declaring the content of the form was complete and accurate when he had taken  no steps to verify that simply due to what he claims was a lack of time. The applicant also told the Tribunal that by the time he signed the form, it was already completed by the agent. The Tribunal does not consider it plausible that the applicant would have signed the completed form without spending only a few minutes to read it. The Tribunal is of the view that the more likely explanation is that the applicant did read the form and was aware of its content and that he was either complicit in the fraud or indifferent to it.

    The present circumstances of the visa holder

31. The applicant states that if his visa is cancelled, his future employment prospects would be affected. In his submission to the Tribunal the applicant claims that his intention was to apply for a permanent visa in Australia and if the visa is cancelled, he would be subject to an exclusion period.

32. The applicant told the Tribunal that he presently works as a process worker and a machine operator which is ‘almost related’ to his field. The applicant states that he could not get a job in an automobile engineering field. The applicant concedes that he has not worked as an engineer in Australia.  The applicant provided his tax return, evidencing employment in Australia. The Tribunal accepts that if the applicant is required to leave Australia, he may not be able to maintain employment 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

33. 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

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

    The time that has elapsed since the non-compliance

35. The application for the visa was made in October 2017. Approximately 18 months passed since the non-compliance.

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

36. There are no known breaches of the law.

    Any contribution made by the holder to the community.

37. The applicant refers to his employment in Australia and the payment of taxes. The Tribunal accepts that evidence.   

38. 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

39. 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.

    Whether there would be consequential cancellations under s.140

40. 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.   

41. There are no children who would be affected by the cancellation. The applicant does not claim, and presented no evidence to suggest, that he would be subjected to any form of harm or persecution upon return to his home country. The Tribunal finds that there are no non-refoulement obligations arising as a result of the visa 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

1. The applicant states that his intention was to seek permanent residence in Australia and if his visa is cancelled, he would be subject to an exclusion period. The applicant told the Tribunal that he intended to apply for regional-sponsored migration but his visa was cancelled. The Tribunal is mindful that the applicant has spent about one year in Australia prior to the cancellation of his visa and it is not apparent that he had taken any steps to progress an application for a permanent visa. The applicant told the Tribunal that he has not arranged regional sponsorship or anything else that would have been relevant to a visa application. He told the Tribunal that he intended to wait for the full period of the present visa before applying for another one. The Tribunal is prepared to accept that the applicant had the intention of seeking another visa in Australia. However, the delay in the applicant doing so and the fact that he had taken no steps to prepare that application in the time before his visa was cancelled, suggest to the Tribunal that any hardship arising from the cancellation and limits on future visa options would be less significant.

2. The Tribunal is also mindful that while the applicant may be precluded by s. 48 of the Act from making many applications onshore, he may be eligible to seek visas offshore and that exclusion periods do not apply to each visa category and when they do apply, may be subject to waivers. Thus, whether or not the visa remains cancelled, the applicant does have the opportunity to seek other visas in the future.

3. In his written submission to the Tribunal the applicant refers to the financial hardship, as he states that he has a significant debt associated with the visa and with the cancellation process. The applicant presented no documentary evidence of such debt but the Tribunal is prepared to accept that the applicant may have had expenses associated with the visa processes and his travel to Australia. It is unclear, however how the cancellation of the visa would affect the applicant’s financial capacity. While the Tribunal acknowledges that the applicant is able to engage in employment while a holder of a visa and may not be able to do so if his visa is cancelled, the Tribunal is mindful that the visa in question was due to expire in June 2019. That is, the applicant would have been permitted to remain in Australia for a period of a little over two months. In the Tribunal’s view, any hardship, including financial hardship, must be viewed having regard to the period of validity of the visa in question.

4. It is also significant that the visa is a temporary visa only. It does not permit the applicant to remain in Australia on a permanent or a long term basis and to work in Australia as he wishes to do, beyond the next two months. The applicant would have to make other arrangements to be able to remain in Australia. The Tribunal is of the view that he is able to do that, whether or not his visa is cancelled, although the Tribunal accepts that he would have more limited options as a result of the cancellation.

5. The applicant told the Tribunal that when his visa was cancelled, it was hard initially because he had to make payments but later he was given permission to work. The applicant’s evidence indicates that his financial condition improved once he was given permission to work.  

6. The applicant told the Tribunal that his family would feel bad if his visa is cancelled and his family may speak badly about the agent. It is not clear to the Tribunal how having a bad opinion of the agent would cause hardship to the applicant. The Tribunal is prepared to accept that the applicant’s family would feel bad about his visa  being cancelled but the Tribunal is not convinced that these matters would cause significant hardship to the applicant.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa as applicant did not comply with s. 101 and s. 103 of the Act. The Tribunal acknowledges the applicant’s evidence that he was not involved in the fraud and trusted the agent and gave genuine documents to the agent but the Tribunal does not accept the applicant’s evidence that he did no read the form because he was too busy and could not find a few minutes to read the form before signing it. The Tribunal has formed the view that a more likely explanation is that the applicant did read the form before signing it and that was either complicit in the fraud or at least aware of it.

8. The Tribunal accepts that hardship would be caused to the applicant as a result of the cancellation. This is because the applicant would be unable to remain and work in Australia as he wishes to do and because he would have limited visa options in the future, particularly onshore. The Tribunal is also prepared to accept that the cancellation of the visa would affect the applicant and his family financially because the applicant would not be able to work in Australia if he has no visa to live in this country.

9. There are no other known instances of non-compliance and no other breaches of the law. The cancellation would not be in breach of Australia’s international obligations.

10. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents. The Tribunal also places weight on the circumstances in which the non-compliance occurred, as the Tribunal has formed the view that the applicant had not taken adequate steps to ensure correct answers were given – by reading his application form at the very least. In the Tribunal’s view, these factors outweigh other considerations.

11. 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

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

    Kira Raif
    Senior Member