Sundaram (Migration)

[2019] AATA 654

Sundaram (Migration) [2019] AATA 654 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhamodharan Sundaram

CASE NUMBER:  1835565

DIBP REFERENCE(S):  BCC2018/3956562

MEMBER:Kira Raif

DATE:27 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 27 February 2019 at 3:29pm

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 1992. He was granted the Skilled Recognised Graduate Class VF visa on 14 November 2017. The visa was to be in effect until 17 June 2019. On 29 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 29 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 27 February 2019 to give evidence and present arguments. 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 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 Electrical and Electronics Engineering at Sona College of Technology at Salem, Tamil Nadu between August 2013 and April 2016.

   c.In support of his visa application the applicant provided a Consolidated Statement of Grades issued by Anna University for the Bachelor of Engineering at Sona College of Technology.

   d.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 14 November 2017.

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

10. In his written response to the NOICC the applicant states that he obtained a Bachelor of Electrical and Electronics Engineering at SVS College of Engineering, Anna University in Chennai. The applicant states that he approached an agent to prepare his visa application. He provided the agent with genuine education documents. The applicant states that he did not provide bogus documents but only genuine documents to the agent and the bogus documents were submitted without his knowledge. The applicant presented to the delegate evidence of his studies at SVS College of Engineering. The applicant confirmed in oral evidence to the Tribunal that even though he holds a Bachelor of Electronics and Electrical Engineering, which he obtained in 2014, he did not attend Sona College of Technology.

11. On the basis of the applicant’s evidence, the Tribunal finds that the applicant did not complete a Bachelor of Electrical and Electronics Engineering at Sona College of Technology at Salem between August 2013 and April 2016. The Tribunal finds that the Consolidated Statement of grades from Sona College 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 Electrical and Electronic Engineering at Sona College. The applicant did not attend that institution. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given.

13. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that the fraud 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. 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 attend Sona College to obtain his tertiary qualifications. The correct information is that the applicant has completed a qualification at a different institution and not the one he referred to in his visa application. He also graduated in 2014 and not in 2016. 

    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 an Engineering degree at Sona College in 2016.

    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 her eligibility for the visa for the purpose of cl. 476.212. Further, the qualification must have been obtained within the two years before the application was made and the period of study was relevant to that assessment. The applicant provided incorrect answers in relation to the course he completed and also in relation to the date of his course completion.

22. The applicant would have also 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.

23. The Tribunal acknowledges the applicant’s claim that he completed an engineering course at an institution that was affiliated with Anna University. The Tribunal provided evidence of his studies to the delegate and to the Tribunal. However, the applicant did not rely on these qualifications when seeking the visa. Instead, the applicant referred to his studies which he did not in fact complete.

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

    The circumstances in which the non-compliance occurred

25. In his responses to the NOICC the applicant states that after completing his study, he approached an agent to obtain the Australian visa. The applicant states that he gave genuine documents to his agent who had altered his documents. He claims the bogus documents were submitted without his knowledge. The applicant repeated these claims in his evidence to the Tribunal. The applicant told the Tribunal that he has evidence of his interactions with the agent.

26. The Tribunal accepts that the applicant had approached an agent and paid for the service. Nevertheless, the Tribunal is of the view that the applicant had both the responsibility and ample opportunities to learn what evidence was being submitted on his behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and he could have made a request to check the entire application before its lodgement. The Tribunal notes that the Department’s website provides information about subclass 476 visas and eligible institutions and that information was readily available to the applicant. If the applicant had made even the basic inquiries, he would have been well aware that he could not meet the requirements for the grant of the visa for which he was applying because he completed his qualifications more than two years earlier. The applicant states that he did not make any inquiries.

27. 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. It is not apparent that the applicant had taken any such steps. The applicant told the Tribunal that he simply provided his signature to the agent but did not check what his signature was affixed to. The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent.

    The present circumstances of the visa holder

28. The applicant states in his response to the NOICC that he intends to undertake study in Australia and his study would be affected if his visa is cancelled because he would be subject to an exclusion period and he will be too old to study after three years. The applicant explained that he did not apply for the Student visa earlier because he was hoping to save some money for his study. The applicant presented no evidence of having enrolled in a course or of having obtained and accepted an offer of enrolment in any course. The applicant presented no evidence of having the funds to support his study in Australia or of making any other arrangements to enable him to make an application for a Student visa. The Tribunal is mindful that the applicant has been living in Australia for close to one year prior to the cancellation of his visa and if he had a genuine intention of engaging in studies, he had the opportunity to make arrangements to seek a Student visa. The Tribunal is not satisfied that the applicant had a genuine intention of pursuing studies 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

29. 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

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

    The time that has elapsed since the non-compliance

31. The application for the visa was made in September 2017. Approximately 17 months passed since the non-compliance.

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

32. There are no known breaches of the law.

    Any contribution made by the holder to the community.

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

34. 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

35. 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 applicant may be subject to an exclusion period in relation to some visas and would have limited opportunities to make a visa application onshore.

    Whether there would be consequential cancellations under s.140

36. 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

37. There are no children who would be affected by the cancellation. The applicant has no family in Australia. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. 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

38. The applicant claims that the cancellation of his visa would affect his future and he would not be able to study in Australia. As noted above, the Tribunal is not convinced that the applicant had a genuine intention of studying in Australia. The applicant told the Tribunal that he wants to live in Australia and if his visa is cancelled, he cannot apply for any other visa and he will not be able to live in Australia. The applicant states that the cancellation of the visa would affect his future in Australia and he does not want to be banned for three years. The Tribunal accepts that there would be some limitations on the applicant’s future visa application and that this may cause some hardship to the applicant.

39. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with s. 101 and s. 103 of the Act and that there are grounds for cancelling his visa. The Tribunal accepts that a certain degree of hardship would be caused by the cancellation as it would affect the applicant’s future visa options and his ability to remain in Australia, although the Tribunal is also mindful that the visa in question is a temporary visa only which did not permit the applicant to remain in Australia on a long term basis. There are no other known instances of non-compliance and no other known breaches of the law. The Tribunal has found that the cancellation would not be in breach of Australia’s international obligations.

1. The Tribunal accepts that the applicant utilised the services of an agent to make the visa application but the Tribunal finds it problematic that the applicant had taken no steps to check the content of his application before it was submitted. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers and a bogus document and that the applicant would not have qualified for the visa, if the correct information was known. In the Tribunal’s view, these factors outweigh other considerations.

2. 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

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

   Kira Raif
   Senior Member