Srinivasan (Migration)

[2019] AATA 653

Srinivasan (Migration) [2019] AATA 653 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sriramakrishnan Srinivasan

CASE NUMBER:  1833276

DIBP REFERENCE(S):  BCC2018/2186824

MEMBER:Kira Raif

DATE:26 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 26 February 2019 at 2:17pm

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 – negligent and recklessly indifferent in dealings with agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 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 June 1995. He was granted the Skilled Recognised Graduate Class VF visa on 21 August 2017. The visa was to be in effect until 5 March 2019. On 17 October 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 12 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. 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. 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 13 July 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 10 October 2012 and 22 April 2016

   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 submitted Form 80 in which he also stated in response to Question 20 that that he completed a Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology between October 2012 and April 2016.

   e.In support of his visa application the applicant provided

   i.a Consolidated Statement of Grades from Anna University. It refers to the applicant completing a Bachelor of Mechanical Engineering First Class at Dr Mahalingam College of Engineering and Technology in April 2016,

   ii.a Consolidated Statement of Grades from Dr Mahalingam College of Engineering and Technology dated 29 June 2016 which refers to the applicant by name, date of birth and has his photograph attached.

   f.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 21 August 2017 and he arrived in Australia on 5 September 2017.

   g.The Department became aware of visa fraud involving visa applicants claiming to be engineering graduates from Anna University and affiliated institutions providing bogus Consolidated Statements of Grades in visa applications. The Department found a number of Consolidated Statements of Grades to be identical in terms of dates of issue, branch, courses and results and that these have been amended to tailor to the individual visa applicants (name and date of birth). It appears that the Consolidated Statements of Grades purports to have been issued to different students, they all reflect identical subjects studied, in identical order, with identical course outcomes, including credits, grate points and letter grades.

   h.The applicant’s Consolidated Statement of Grades dated 29 June 2016 had been compared to the samples from other visa applicants who claimed to have studied the same course at D Mahalingam College and have been found to have identical dates of issue, branch, courses and results.

10. In his written response to the NOICC the applicant concedes that he did not study at Dr Mahalingam College at Pollachi. The applicant states that he completed a Bachelor of Mechanical Engineering at Adithya Institute of Technology at Coimbatore, affiliated with Anna University, between October 2012 and April 2016. The applicant states that he had difficulty obtaining a visa to other countries, so he approached an agent to prepare his visa application. He provided the agent with genuine education documents and signed the form and paid a fee to the agent. The applicant states that he was not aware of the agent providing fraudulent information and the agent cheated him. He did not know about the submission of bogus documents until he received the NOICC. The applicant provided to the delegate and subsequently to the Tribunal evidence of his Indian qualifications, and other documents.

11. 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 October 2012 and April 2016. The applicant studied at a different institution. On the basis of this information, the Tribunal finds that the Consolidated Statement of grades from Dr Mahalingam College Engineering and Technology is a bogus document either 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. The Tribunal finds that the applicant has given, presented, produced or provided to an officer or the Minister, bogus documents or caused such documents to be so given, produced or provided.

12. The Tribunal further finds that on the application forms, in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology between October 2012 and April 2016. 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.

13. 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 until receiving the NOICC. 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.

14. 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.

15. 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.

16. 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?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

19. The correct information is that the applicant did not complete the Bachelor of Mechanical Engineering at Dr Mahalingam College of Engineering and Technology, between October 2012 and April 2016. His evidence to the delegate and the Tribunal is that he completed a Bachelor Mechanical Engineering at Adithya Institute of Technology. The correct information is that the applicant has completed a different qualification at a different institution and not the one he referred to in his visa application.

    The content of the genuine document (if any)

20. 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

21. To be granted the visa, the applicant was required to complete a prescribed type of qualification at a prescribed institution. Information and documents about the applicant’s educational qualifications were central to assessing his eligibility for the visa for the purpose of cl. 476.212.

22. 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.

23. The Tribunal acknowledges the applicant’s claim that he completed a mechanical engineering course at an institution affiliated with Anna University. The applicant provided evidence of his studies to the delegate and the Tribunal. 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 question before the Tribunal is whether the decision to grant the visa was based on incorrect information, not whether the applicant would have been able to obtain the visa if he provided correct information and genuine documents. The applicant did not use the correct information and genuine documents with his visa application.

24. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and on a bogus document.

    The circumstances in which the non-compliance occurred

25. In his responses to the NOICC and his evidence to the Tribunal the applicant states that after completing his study, he wanted to obtain a visa to go overseas but he had difficulty getting a visa because of his family’s limited finances. The applicant states that he approached an agent who advised him he could obtain the Subclass 476 visa. The applicant states that he opened an IMMI account but did not feel confident making the application on his own, and relied on the agent. He states that he gave the agent the genuine documents, signed the forms and paid the fees but did not know that the agent would provide bogus documents.

26. In oral evidence, the applicant the applicant told the Tribunal that after finishing his degree, he wanted to do a Masters course and explored getting visas to other countries. A friend referred him to the Subclass 476 visas and he checked the website about the visa requirements. Because he held a degree from Anna University, he thought he was eligible for the visa. He filled in the forms and uploaded the documents but because he was not confident and did not want to make a mistake, he approached an agent and gave his documents and fees to the agent. The applicant states that he had ‘almost completed’ the forms on his own but then gave his account details to the agent and the agent changed his IMMI account password.

27. The applicant provided to the Tribunal evidence of his interactions with the agent. The Tribunal accepts that the applicant had approached an agent and paid for the service. Nevertheless, 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 insisted to see the completed application and the forms before the papers were submitted. The applicant could have also changed his IMMI password and logged into account to check the application, as he claims to have done initially.

28. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application forms and the applicant could have easily checked the forms before signing and before the application was submitted. In the Tribunal’s view, he had the responsibility to do so to ensure that any information that was being submitted on his behalf – and which had been signed by him – was correct and accurate. The applicant’s evidence is that there was no reason to check because he trusted the agent. The Tribunal is not satisfied that the applicant had taken adequate steps to check the application papers or the online application.

    The present circumstances of the visa holder

29. The applicant states that he was informed by the agent that he could pursue postgraduate study in Australia but he could not afford to do the course. He provided to the Tribunal evidence of having made inquiries with the university in 2017 but no evidence of having commenced the course. He told the Tribunal that his visa was valid to March 2019 and allowed him to work full-time while a student visa only allowed him to work part-time. That is, the applicant decided that his work was of more importance than pursuing a course. The applicant told the Tribunal that he planned to study in Canada but his loan was denied so he decided to work and save money before applying for a student visa again.

30. In his submission of 18 February 2019 the applicant provided to the Tribunal evidence of having made recent enquiries about enrolment in a Master of Engineering course. There is no evidence that the applicant has been given a letter of offer or that he had accepted the offer. The applicant explained to the Tribunal that after he received the NOICC, he approached the educational institution to enrol but they told him that he had to remove PIC 4020 before he could enrol. If the applicant’s evidence is that he cannot get admission to any course while PIC 4020 applies to him, that may suggest that there is little prospect of the applicant being able to obtain an offer of enrolment in Australia in the near future, given his provision of false or misleading information and bogus documents in relation to the Subclass 476 visa. The Tribunal is mindful that the cancellation or the setting aside of the cancellation of the Skilled visa would have no effect on the application of PIC 4020.

31. The applicant presented to the Tribunal evidence of his employment and the Tribunal accepts that the applicant has been employed in Australia. He told the Tribunal that he learned a lot from Australia and is a more confident person. He has made friends and has accommodation and wants a chance to stay and study in Australia. The Tribunal acknowledges that evidence although the Tribunal is mindful that the visa in question is a temporary visa only which does not allow the applicant to remain in Australia beyond 5 March 2019.

    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 July 2017. Approximately 19 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.

    Any contribution made by the holder to the community.

1. The applicant told the Tribunal that once he improved his English he was able to get a job for NBN. He refers to his membership of the zoo, his interest in photography and protecting the environment. The Tribunal accepts that evidence.  

2. 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

3. 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 there are limited visa opportunities onshore. The applicant referred to the application of PIC 4020 but this provision does not arise as a result of the cancellation.

4. The applicant refers to the visa ban to other countries as a result of the cancellation of his visa. the Tribunal cannot comment on visa requirements for other country

   Whether there would be consequential cancellations under s.140

5. 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.   

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

7. There is no evidence, and the applicant does not claim, that Australia’ss non-refoulement obligations would be breached as a result of the cancellation.

8. 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

9. The applicant told the Tribunal that he wanted to study a Masters course and wanted to work overseas to earn money for his Masters course. Because of the cancellation, he has a three year exclusion period. He also tried to apply for visas to other countries and he cannot get a visa to another country because of the cancellation. The Tribunal accepts that the cancellation of the visa may affect the applicant’s opportunities of getting other visas in Australia and possibly in other countries. The Tribunal accepts that hardship would be caused as a result of the cancellation.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s. 101 and s.103 of the Act and that there are grounds for cancelling his visa. The Tribunal accepts that hardship would be caused by the cancellation because the applicant’s visa options in Australia and possibly overseas will be limited and the applicant refers to have a ‘black mark’ against his name that would affect his ability to travel to, and study in any other country. The Tribunal also accepts that the cancellation of the visa would limit the applicant’s employment options in Australia and the opportunity to support his family financially, although the Tribunal notes that the visa in question would have expired in early March 2019.

11. There are no other known instances of non-compliance or breaches of the law. The cancellation would not be in breach of Australia’s international obligations. Close to a year and a half passed since the non-compliance.

12. The Tribunal has formed the view that the applicant has not taken adequate steps to ensure his visa application contained correct information and genuine documents. The applicant relied on the agent to lodge the application and claims that despite completing most of the application himself, he has not done any checking once he approached the agent. In the Tribunal’s view, the applicant had the capacity to check if he wanted to but he has shown an indifference about the content of his application. The Tribunal places weight on the circumstances in which the non-compliance occurred.

13. The Tribunal also places weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s study was central to the decision to grant him the visa and the applicant relied on the degree which he did not have to obtain the visa.

14. IN the Tribunal’s view, the circumstances in which the non-compliance occurred and the fact that the decision to grant was based on incorrect answers and bogus documents outweigh other considerations.

15. 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

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

    Kira Raif
    Senior Member