THAIVELIYIL RADHAKRISHNAN (Migration)

[2019] AATA 832

THAIVELIYIL RADHAKRISHNAN (Migration) [2019] AATA 832 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gokulkrishna THAIVELIYIL RADHAKRISHNAN

CASE NUMBER:  1821807

DIBP REFERENCE(S):  BCC2018/1831310

MEMBER:Kira Raif

DATE:22 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2019 at 3:24pm

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

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

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in September 1991. He was granted the Skilled Recognised Graduate Class VF visa on 30 October 2017. The visa was to be in effect until 29 May 2019. On 3 July 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 25 July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 January 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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant made the application for the Class VF visa on 3 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 Civil Engineering at K.S. Rangasamy College of Technology at Tiruchengode between August 2012 and April 2016.

   c.On pages 9 and 10 of the application form the applicant signed a ‘declaration for all applicants’ confirming that he provided complete and correct information in every detail on the form and any attachments.

   d.The applicant also submitted Form 80 in which he stated that he had completed a Bachelor of Engineering in Civil Engineering at K.S. Rangasamy College of Technology in April 2016.

   e.In support of his visa application the applicant provided

   i.A Certificate dated November 2016 indicating that Gokulkrhshna T R had been admitted to a degree of Bachelor of Engineering (Civil Engineering) through K.S. Rangasamy College of Technology, Tiruchengore.  

   ii.Consolidated statement of grades dated 22 July 2016

   iii.Statements of grades dated between May 2013 and July 2016.

   f.On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 30 October 2017.

   g.The Department’s investigation found that the applicant’s certificate, consolidated statement of grades and the statements of grades provided with the application have been shown to be identical to those provided to the Department by a number of others claiming to be Bachelor of Engineering graduates from K.S. Rangasamy College of Technology. In each cases the subject grades, dates of completion, credits and cumulative grade point average are an identical match. Only the graduate’s personal details (names, dates of births, photos), the registration number and folio numbers have been changed but in every other respect the documents are identical.

10. The applicant did not provide a response to the NOICC. In his oral evidence to the Tribunal the applicant stated that he did not attend KS Rangasamy College of Technology. The applicant told the Tribunal that he studied at CMS Institute of Management at Coimbatore and graduated with an MBA.

11. Having regard to the Departmental inquiries as outlined above, and the applicant’s own evidence to the Tribunal, the Tribunal finds that the applicant did not attend K.S. Rangasamy College of Technology at Tiruchengode between August 2012 and April 2016 and did not obtain a Bachelor of Civil Engineering.

12. The Tribunal finds that the award qualification, statements of grades and the consolidated statement of grades for the Bachelor of Engineering from K.S. Rangasamy College of Technology are bogus documents within the meaning of s. 5(a) because they purport to have been, but were not, issued in respect of the applicant, or within the meaning of s. 5(b) because they were 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.

13. The Tribunal further finds that on the application forms and Form 80, in response to questions about his qualifications, the applicant gave an incorrect answer by stating that he had completed a Bachelor of Engineering at K.S. Rangasamy College of Technology at Tiruchengode between August 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 the 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.

14. 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.

15. 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?

16. 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).

17. 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

18. The correct information is that the applicant did not attend KS Rangasamy College and did not obtain the Bachelor of Civil Engineering from that institution. He has completed an MBA from a different institution and not the one he referred to in his visa application.

    The content of the genuine document (if any)

19. The genuine document would not indicate that the applicant obtained a Bachelor of Engineering from The genuine document would not indicate that the applicant obtained a Bachelor of Engineering at K.S. Rangasamy College of Technology at Tiruchengode. The applicant’s evidence to the Tribunal is that he holds a different qualification.

    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

20. Clause 476.212 requires the applicant to have completed a prescribed qualification from a prescribed institution. The applicant claims that he completed an MBA from another college. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa. The Tribunal finds that the decision to grant the visa was based on incorrect information and a bogus document.

    The circumstances in which the non-compliance occurred

21. The applicant told the Tribunal that he did not know about the visas and approached an agency. The applicant said that when he spoke to the agency, he mentioned that he held the MBA and the agent told him he could apply anyway. The applicant said that it was the first time he made an application and did not know what to do.

22. The Tribunal does not accept the applicant‘s evidence. Firstly, the information on the Department’s website clearly indicates that the Subclass 476 visa is designed for engineering graduates. The applicant’s own investigation showed that he must have been an engineering graduate and that he could not qualify as a holder of an MBA. Even if the applicant was not familiar with the visa process and relied on the agent, the applicant did realise that he must be an engineering graduate. Lack of familiarity with the process does not overcome the fact that the information about the threshold criteria (being an engineering graduate) was available and known to the applicant.

23. Secondly, the application contained incorrect answers and bogus documents. 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. 

24. The Tribunal is mindful that the issue is not only the provision of bogus academic qualifications but also an answer on the application form and the applicant could have easily checked the form before it 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 was correct and accurate. It is not apparent that the applicant had taken any such steps.

25. The applicant’s evidence to the Tribunal is that the paperwork ‘looked ok’ to him when he read it and he was only given a copy of one document. The applicant states that he did not notice the name of the college on the form and the agent told him he would put in additional information about the MBA. It is unclear to the Tribunal how the applicant could not have noticed the reference to him holding the Bachelor of Engineering he did not obtain from a college he did not attend. The applicant states that on Form 80 the agent only asked him for the address and some other personal information while the agent filled in other information.

26. The Tribunal considers it significant that on the applicant’s own evidence, he checked the Department’s website and knew that he had to be an engineering graduate. The applicant claims that despite not being an engineering graduate, the agent assured him his qualification could ‘fit in’. The Tribunal does not accept that the applicant genuinely believed that am MBA could be considered as, or could ‘fit in’, an engineering qualification. The Tribunal finds that the applicant was either complicit in the misconduct 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

27. The applicant told the Tribunal that it took him two to three months to find a job once he came to Australia. He used to do casual jobs but he cannot work since the cancellation of his visa. Since then he has been supported by his parents. The applicant states that he wants to stay in Australia and work to support his family. The applicant said that he hopes there is another way to allow him to stay 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

28. 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

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

    The time that has elapsed since the non-compliance

30. The application for the visa was made in September 2017. Approximately 16 months passed since the non-compliance.

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

31. There are no known breaches of the law.

    Any contribution made by the holder to the community

32. The applicant told the Tribunal that he has not done any social work and even though he wants to do it, he did not know how to and did not have the opportunity. The applicant has not presented any other evidence of having made any contribution to the community.

33. 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

34. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that exclusion periods may apply and that there are only limited categories of visas the applicant can seek in Australia.

    Whether there would be consequential cancellations under s.140

35. 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

36. There are no children who would be affected by the cancellation.

37. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be engaged as a result of his visa being cancelled.

38. The Tribunal finds that Australia’s international obligations would not be breached as a result of the visa cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

39. The applicant told the Tribunal that he would experience financial problems in India. He said his brother has an export business. It is unclear to the Tribunal how the cancellation of the visa would affect his brother’s business or cause financial problems, given that the visa in question would expire in four months. The applicant then said that they can manage the financial problems.

40. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant had not complied with ss. 101 and 103 of the Act. There are no other instances of non-compliance and no other known breaches of the law. Over a year passed since the non-compliance. The Tribunal found that the cancellation would not breach Australia’s international obligations and the applicant’s evidence about any hardship that may arise from the cancellation is limited.

41. The Tribunal has formed the view that the applicant had not taken adequate steps to check the application and to ensure the information and documents submitted on his behalf were accurate, correct and genuine. The Tribunal finds it particularly significant that the applicant checked the eligibility requirements online and knew that his course was not acceptable. The Tribunal does not accept the applicant’s evidence that he believed the agent that this problem could somehow be overcome. The Tribunal has formed the view that the applicant was complicit in the commission of fraud by the agent or that at least, he was indifferent about such fraud.

42. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information and, in this case, the fact that the applicant was not entitled to the grant of the visa because he does not hold the prescribed qualifications. In the Tribunal’s view, such factors outweigh other considerations.

43. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

   Kira Raif
   Senior Member