Zakir Hussain (Migration)

Zakir Hussain (Migration) [2019] AATA 898 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khizar Hussain Zakir Hussain
CASE NUMBER:  1831825
DIBP REFERENCE(S):  BCC2018/3722531
MEMBER:Kira Raif
DATE:8 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 08 February 2019 at 10:06am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – ground for cancellation – bogus documents – incorrect information in visa application – academic qualifications – consideration of discretion – application assisted by migration agent – steps to ensure correctness of application – grant of visa based on incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 103, 107, 109
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

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).
The applicant is a national of India born in August 1993. He was granted the Skilled Recognised Graduate Class VF visa on 22 August 2017. The visa was to be in effect until 25 March 2019. On 26 September 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 25 October 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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.
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?
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.
The Tribunal is satisfied that the notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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?
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.
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 15 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 Sri Ramakrishna Engineering College at Coimbatore between 1 August 2012 and 30 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 Part G that he completed a Bachelor of Mechanical Engineering at Sri Ramakrishna College Engineering College between August 2012 and April 2016.
e.In support of his visa application the applicant provided:
i.a Provisional Certificate issued by Anna University on 10 September 2016 indicating that the applicant qualified for the award of Bachelor of Mechanical Engineering first Class in April 2016
ii.a Consolidated Statement of Grades from Anna University dated 10 September 2016 which refers to the applicant undertaking study at Sri Ramakrishna Engineering College
iii.Grade Sheets dated between January 2013 and April 2016 referring to the Bachelor of Mechanical Engineering at Sri Ramakrishna Engineering College.
f.On the basis of this information, the applicant was granted the Skilled - Recognised Graduate Subclass 476 visa on 22 August 2017 and he arrived in Australia on 25 September 2017.
g.Information in the primary decision record indicates that:
i.In March 2017 a representative of the Department’s overseas office met with the Controller of the Examinations, who advised that Anna University is comprised of University Departments and affiliated institutions that may be autonomous or non-autonomous. Sri Ramakrishna College of Engineering is an autonomous institution affiliated with Anna University.
ii.The Controller of Examinations at Anna University provided the delegate with samples of genuine Provisional Certificates issued by the University, including those issued to graduates of an affiliated institution. The Provisional Certificate submitted by the applicant did not match the genuine sample provided by Anna University.
iii.The text contained in the genuine Provisional Certificate issued to graduates of affiliated instuitons was absent on the Provisional Certificate submitted by the applicant. The applicant’s Certificate contained only the following text ‘this is to certify that the following candidate has qualified for the award of Degree as detailed below’ followed by the applicant’s name, registration number and details of the qualification. A genuine Provisional Certificate issued to graduates of affiliated institutions includes the name of the institution where the study was completed and refers to the affiliation of the institution with Anna University. The Provisional Certificate submitted by the applicant does not state that his studies were completed at Sri Ramakrishna College of Engineering and it does not specify the affiliation of that institution with Anna University.
h.The primary decision record indicates there are several inconsistencies in the security features of the genuine Provisional Certificate sample provided by the Controller of Examinations at Anna University when compared to the applicant’s Certificate. It is stated that the layout of the Certificate, the font and style of the text, the border design and Anna University emblem do not match the genuine sample.
i.With respect to the Consolidated Statement of Grades, the decision record notes that the applicant’s Statement was matched against a sample provided to the Department by another applicant who claims to have graduated from Sri Ramakrishna College of Engineering in the same period. It was found that the subject grades, dates of completion, credits and cumulative grade point average were an identical match. Only the registration numbers, the folio numbers and the personal details (names, dates of birth, photographs) had been changed. In every other respect the documents are identical, including the position of Anna University’s wet seal.
In his written response to the NOICC the applicant stated that he approached an agent in India who informed him that he was eligible for the Australian visa and requested certain documents. The applicant paid a fee to the agent and provided the agent with his educational documents. The applicant stated that he trusted the agent to present his case and did not expect the agent to provide fraudulent documents. The applicant states that he had no knowledge that the agent would provide counterfeit documents and it was not his intention to provide false information. The applicant provided with his response evidence of interactions with Shea Immigration Services, as well as other materials. He requested more time to provide evidence of his study in India.
The applicant subsequently provided to the delegate evidence of his study. This includes a copy of his qualification for the Bachelor of Mechanical Engineering from Anna University, a Consolidated Statement of Grades and Grade Sheets indicating the applicant completed his study at Chennai Institute of Technology. The applicant provided the same documents to the Tribunal shortly before the hearing.
In oral evidence to the Tribunal the applicant also stated that a migration agent advertised at his college and he believed he was eligible for the visa. When he approached the agent, they asked for documents and he submitted all the originals from his college. The applicant states that he did not fill in the forms but had only given his resume and all the information was taken from his resume.
The applicant’s response indicates that he had not obtained a Bachelor of Mechanical Engineering at Sri Ramakrishna Engineering College as a result of study between August 2012 and April 2016. Rather, the applicant claims he obtained his degree from a different institution, Chennai Institute of Technology. On the basis of this information, the Tribunal finds that the Provisional Certificate, Consolidated Statement of Grades and Grade Sheets from Sri Ramakrishna Engineering College are bogus documents either 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 are counterfeit or had 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.
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 Sri Ramakrishna Engineering College 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.
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 and that he is the victim of the agency. 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.
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 of the Act 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. 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.
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.
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?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:
The correct information
According to the applicant’s response to the NOICC, the correct information is that he completed a Bachelor of Engineering at Chennai Institute of Technology. The applicant did not undertake study at Sri Ramakrishna College of Engineering.
The content of the genuine document (if any)
The Tribunal has found that the academic papers are bogus documents. A genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering from Sri Ramakrishna College of Engineering.
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
Clause 476.212 of Schedule 2 to the Regulations requires the applicant to have completed a prescribed qualification from a prescribed institution. The Tribunal finds that the assessment of the applicant’s educational qualification was central to the assessment of his eligibility for the visa.
The applicant told the Tribunal that he presented genuine documents to the agent and that he did meet the requirements for the grant of the visa as he is an engineering graduate from Chennai College of Technology, which is affiliated with Anna University. However, the Tribunal notes that the applicant did not rely on that qualification when making the application. He relied on bogus documents and incorrect answers by claiming to have completed a different course. It is not necessary for the Tribunal to determine whether the applicant could have met the visa requirements if the correct information was known. It is sufficient that the decision to grant the visa was based on incorrect information and bogus documents. Should the applicant choose to make another application on the basis of genuine documents, he can explore that option.
The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.
The circumstances in which the non-compliance occurred
In his responses to the NOICC the applicant states that after completing his study, he wanted to work overseas and approached an agent, Shea Immigration Services Pvt Ltd. The agent suggested a visa for Australia and requested certain documents, which the applicant provided. The applicant presented to the Tribunal a receipt for his payment to Shea Immigration Services and other evidence of his interactions with the agent. In his submission to the Tribunal of 7 February 2019 the applicant states that he believed Shea Immigration and relied on their advice and had no intention to mislead.
The Tribunal finds the applicant’s submission problematic. Firstly, the primary decision record indicates that the applicant provided his own email address as a contact address in his application and not the contact details of any agent. (The applicant told the Tribunal that that information was not correct and that it was not his email address that was used on the form.) The delegate found that the applicant would have personally accessed the Department’s online facility to lodge and monitor the progress of his application. The applicant stated on the form that he did not receive assistance in completing the form and he did not authorise any other person to act on his behalf. Importantly, the primary decision record indicates that the applicant signed Form 80 and that signature matches the signature in his passport. All of these factors indicate that the applicant had considerable involvement in making the visa application and contradict his claim that he fully relied on the agent and had little or no involvement with his visa application.
Secondly, the Tribunal acknowledges the applicant’s evidence of his interactions with Shea Immigration Services and evidence of payment. The Tribunal accepts that it is likely that the applicant did receive assistance from Shea Immigration Services, even if such assistance was not declared in the forms. However, even if the applicant was assisted by an agency in preparing his visa application, the Tribunal is of the view that the applicant had the responsibility 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 applicant told the Tribunal that he trusted the agent because they did other visa applications and were able to obtain visas, and he believed they were genuine agents. He also refused to pay the fee until the visa was granted. The Tribunal accepts that the applicant may have trusted the agent. However, in the Tribunal’s view, that does not affect the applicant’s responsibility for ensuring the content of his application was correct and accurate. The applicant concedes that he did not check the application.
The applicant told the Tribunal that he is the first person from his family to graduate and go overseas so he was not familiar with the requirements. However, the Tribunal does not expect the applicant to have any legal knowledge or knowledge of Australia’s immigration laws. The Tribunal’s concern is with the applicant’s failure to take even the basic steps of reading the forms and checking the content of the visa application. Doing so would not have required any specialist skills or knowledge from the applicant.
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. The applicant told the Tribunal that he filled in and signed the form in pencil, and had evidence of that, and it was the agent who completed the forms. The applicant also told the Tribunal he did not check the forms. In the Tribunal’s view, he had the responsibility to do so to ensure that the 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 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

In his response to the NOICC the applicant states that he should be given the opportunity to fix his situation or to apply for another visa. Whether or not the applicant’s visa is cancelled, the applicant may have opportunities to apply for other visas in the future, although such opportunities may be more limited as a result of the cancellation. The Tribunal also notes that the applicant had the opportunity to seek another visa, if he wished to do so, before his visa was cancelled.
The applicant provided to the Tribunal a letter of offer for a Professional Year commencing in February 2018. The applicant has not presented evidence of having enrolled in that course or of having undertaken it. He explained to the Tribunal that he enquired about the professional year to further his career, but the cost was too high, so he did not have money to do the course. The applicant told the Tribunal that he can borrow money to pay for his studies. He has not satisfied the Tribunal that the same arrangements could not have been made before, if the applicant had a genuine intention of pursuing studies in Australia. The Tribunal is not satisfied that he did.
The applicant told the Tribunal that initially, he could not get a job in his own field in Australia, and later he found a job in supply chain management. He has not worked since his visa was cancelled. The applicant states that he wanted to stay in Australia to clear his name because he has done nothing wrong.
The applicant provided to the Tribunal evidence of having applied for jobs in India. The applicant told the Tribunal that when he could not get jobs in Australia, he tried to get a job in India and he was unsuccessful. He claims that the cancellation of the visa would affect his job opportunities in India.
The applicant told the Tribunal that he is married and his wife and child are in India. He came to Australia to further his career but because of what happened, he is not sure what will happen to his career. The Tribunal is mindful that the visa in question would expire in March 2019 when the applicant would be required to leave Australia. The Tribunal is not convinced that loss of employment in the next six weeks before the expiry of his visa would adversely affect the applicant’s future career.
The applicant told the Tribunal that the company he worked for wanted to sponsor him if he completed 12 months of employment. The applicant presented a character certificate from his former employer but no evidence of his employer’s willingness to sponsor him, although the Tribunal is prepared to accept that this may be the case. As noted elsewhere, the sponsorship can proceed and the applicant can apply for another visa, even though there may be limitations and an exclusion period in relation to future applications.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the visa holder’s subsequent behaviour in relation to the above provisions.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant told the Tribunal that he married in 2016 and had a child born in July 2017. In his application form the applicant stated that he was never married and made no mention of the child. If the child was born after the application was made, there is no evidence that the applicant informed the Department in writing, before making his entry to Australia, about the changes in his circumstances.
The Tribunal discussed that information with the applicant pursuant to s.359AA of the Act. The applicant chose to provide his comments or response orally. The applicant told the Tribunal that the information on the form was submitted by his agent. Later on, when he was able to log into the IMMI account, he changed the information and provided correct information. The applicant confirmed that he provided the correct information after he came to Australia. The applicant does not claim that the correct information was provided when the application was made, as required by s.101, or that he informed the Department of the changes in his circumstances (if his child was born after the visa application) prior to his entry to Australia, as required by s.104.
The Tribunal finds that by failing to mention his wife and child, the applicant provided answers in his application form that were incorrect and that is another instance of non-compliance.
The time that has elapsed since the non-compliance
The application for the visa was made in July 2017. Approximately 18 months passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law. The Tribunal acknowledges the applicant’s Indian police certificate.
Any contribution made by the holder to the community
The applicant has not presented any evidence of having made a contribution to the community in his evidence to the delegate. The applicant provided to the Tribunal a receipt for a charitable contribution, dated 28 January 2019. The Tribunal is mindful that the applicant has been living in Australia since September 2017, for a period exceeding one year and there is little evidence that the applicant has made any contributions prior to the end of January 2019. The timing of the applicant’s one donation made a week before his Tribunal hearing strongly suggests that the donation and the arrangement for monthly contribution were made for the benefit of his visa. Nevertheless, the Tribunal acknowledges that the applicant has made a contribution to a charity.
The applicant told the Tribunal that he also made an application to the Red Cross to become a volunteer about a month before the hearing. He presented no evidence of that but the Tribunal is prepared to accept that the applicant has made the application. There is no evidence that the applicant has carried out any voluntary work for the Australian Red Cross or any other organisation. Again, the timing of the application suggests that the applicant made it for the benefit of his visa.
The applicant told the Tribunal that he was member of the National Cadet Corp and the Red Cross in India and he has made contributions from his childhood, which shows that he has always had a ‘helping mind’ and he is not doing it for the purpose of the visa. The applicant states that he only made a contribution in Australia recently because he was free at that time and not working. The Tribunal is not convinced that the applicant would have required much time to make a donation, and that he could not have made donations while working (and when he had better income) before January 2019. The Tribunal does not accept that the applicant was prevented from making charitable donations in the past due to his employment commitments. The applicant told the Tribunal that he made a banner about Tamil Nadu farmers which he displayed at the stadium and he campaigned at a match. It is not clear how a banner about Tamil Nadu farmers constitutes a contribution to the community. Nevertheless, the Tribunal accepts the applicant’s evidence that he contributed to the community in India and that he continues to contribute in Australia.
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
If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the Tribunal acknowledges that there limitations on making applications onshore. The applicant may be subject to an exclusion period in relation to future visa applications.
The primary decision record indicates that the applicant’s partner and child made applications for Australian visas. The Tribunal acknowelges that if the applicant’s visa is cancelled, he may be unable to sponsor his family to travel to Australia.
Whether there would be consequential cancellations under s.140
There are no persons whose visas would be subject to cancellation under s.140. The applicant told the Tribunal that his partner and child are in India.
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.
The applicant has no family in Australia.
The applicant told the Tribunal that he was married in 2016 and has a child born in July 2017. The applicant told the Tribunal that if the visa is cancelled, his child would be affected because he cannot get jobs in India. The Tribunal does not accept, for the reasons stated elsewhere in this decision, that the applicant would not be able to get jobs in India as a result of the cancellation of his visa. As noted elsewhere, the Tribunal is not satisfied that the applicant’s lack of success finding employment so far has been due to the cancellation of the visa, rather than other circumstances. The applicant’s evidence is that his child is in India and has never lived in Australia. The applicant’s evidence is that he has not been working since the cancellation of his visa and has not contributed to his family financially, and the family obtained a loan to support themselves. That is, the family does not appear to be dependent on the applicant’s income to meet their financial needs.
The Tribunal does not accept that the cancellation of the visa would affect the applicant’s future employment in India and his ability to provide financial support to his family. The Tribunal does not accept that the applicant’s partner and child will be financially affected as a result of the visa being cancelled. The Tribunal does not consider that the best interests of the applicant’s child would be adversely affected as a result of the visa being cancelled.
In oral evidence to the Tribunal the applicant stated that after his visa was cancelled, he approached his local police to complain about the agent, and the agency approached his family and threatened them. The applicant also claims that he had been approached by someone from the media. The Tribunal finds the applicant’s evidence unconvincing.
Firstly, the applicant presented no documentary evidence to support his claims. There is no evidence that the applicant had approached the police or tried to lodge the FIR against the agent. There is no evidence of his family being threatened in any way. There is no evidence of the applicant being approached by a journalist. There is no probative evidence to support the applicant’s claims and the Tribunal is not required to accept the applicant’s claims unquestioningly.
Secondly, and significantly, the applicant made no mention of these matters prior to the hearing. The applicant made no mention of any threats to himself or his family or his claimed fear of harm in his written response to the NOICC and in any of his written submissions to the Tribunal prior to the hearing, despite making written submissions to the Tribunal and despite being represented by a migration agent. The applicant told the Tribunal that his agent did not advise him that he needed to provide this information and he did not know it was relevant. The Tribunal does not accept that evidence because the same issues have been addressed in the primary decision and the applicant was put on notice as to what issues were relevant to the consideration of the discretion. The applicant was also assisted by a migration agent, Ms Tanvi Dutt of DNT Immigration and Education Services throughout the review.
The applicant initially told the Tribunal that he read the delegate’s decision. When the Tribunal pointed out that the same issues were addressed in the primary decision, the applicant changed his evidence and said that he only read the first two points but not the entire decision record. The Tribunal does not accept that the applicant, who claims that the cancellation of the visa would ‘ruin his future’, would not have made the effort to read the delegate’s decision. The Tribunal has formed the view that the applicant has been deliberately untruthful in his evidence to the Tribunal.
The fact that the applicant made no mention of any of his claims prior to the hearing suggests to the Tribunal that his claims are a recent invention. The Tribunal does not accept the applicant’s evidence.
Nevertheless, if the applicant did genuinely believe that he would be subjected to any form of harm or persecution, he is eligible to seek a protection visa where his claims could be assessed. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation because the applicant’s claims could be assessed as part of a different process in relation to a protection visa application.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The applicant claims in his written evidence that he would not be able to pursue study in Australia if his visa is cancelled. The applicant states that he needs a Masters degree to be able to get a job in India and he wants to study Masters to pursue his career. However, as noted above, the Tribunal is not satisfied the applicant had a genuine intention of studying in Australia. He provided to the Tribunal evidence of having received a Letter of Offer for a course commencing in February 2018 but he told the Tribunal he did not commence that course and has not undertaken any other study in Australia because of the high costs. Despite the high costs, the applicant claims that he can now obtain the funds to pursue study and he has not satisfied the Tribunal he could not have done the same in the past. In the Tribunal’s view, if the applicant had a genuine intention of studying in Australia, he could have pursued that study prior to the cancellation of his visa. The Tribunal is not satisfied the applicant’s inability to seek a Student visa would cause significant hardship to the applicant.
The applicant states that because of the cancellation, there will be a ‘black mark’ against him and he may not be able to get a job in India. The applicant provided evidence of having applied for jobs and he claims he has been refused jobs. In the Tribunal’s view, the applicant may have been refused jobs for any number of reasons – including the suitability of his qualifications and work experience and the fact that he resides in Australia and not in India – and not necessarily because of the cancellation of the visa. The applicant has not established any link between job refusals and the cancellation of his Australian visa. The Tribunal acknowledges a statement purportedly from Esperer Engineering Services stating that he was not qualified for the job because they require a ‘clear immigration records’ [sic]. The Tribunal finds that evidence unpersuasive. The letter is unsigned and is not on the company letterhead. There is no clear evidence that it was in fact produced by Esperer Engineering Services. It is addressed to the applicant in India, even though he resides in Australia and has done so for several months. The Tribunal is not satisfied this letter, even if it was prepare d by Esperer Engineering Services, genuinely reflects the applicant’s job application and refusal. Neither is it necessarily indicative of the applicant’s future job prospects.
The applicant presented another letter from a prospective employer stating that he would was not suitable because he did not hold a Masters degree. Again. The letter is not on a company letterhead and is unsigned. The Tribunal does not consider such evidence to be probative evidence of the applicant’s employment prospects. The Tribunal is also mindful that the cancellation of the applicant’s visa is not the reason he does not hold the Masters degree. The applicant had the opportunity to study before and he decided not to pursue the course. He may also have the opportunity to seek a Student visa in the future.
The Tribunal is not satisfied that the applicant’s future career would be ruined, particularly if he seeks employment in India, as a result of the visa cancellation in Australia.
The applicant also claims that some companies may send him to work overseas and the cancellation of the visa may affect his ability to work overseas. The Tribunal considers the applicant’s claims speculative. The applicant claims he would get a job in a large multinational company (which contradicts his claim that he would be unable to get a job in India), that they would send him to work in Australia and that he could not get a visa in Australia in the future. These claims are purely hypothetical. The Tribunal is mindful that there is no evidence of the applicant being offered a job in a large or multinational company, there is no evidence that the applicant would be sent to work in Australia and that the future visa application would be unsuccessful as a result of the cancellation. Even if the applicant is subject to an exclusion period as a result of the cancellation, such exclusion period is not indefinite.
The Tribunal accepts that the cancellation of the visa may affect the applicant’s ability to travel to Australia in the immediate future, and the Tribunal is unable to comment on the visa requirements of any other country. The Tribunal does not accept the applicant’s evidence that his future job opportunities and career would be ‘ruined’ as a result of the cancellation of his visa.
The applicant states that if his visa is cancelled, it will affect his family as he will not be able to support them, including his parents who are reliant on him. The Tribunal does not accept that evidence. The applicant’s evidence is that his family have borrowed money and also that he is able to borrow funds from others to pay for his study in Australia. If that is the case, the Tribunal is of the view that the family would have access to funds to meet their financial needs. The applicant claims he has not worked since his visa was cancelled and he presented no evidence of his family being adversely affected. The Tribunal does not accept that the applicant or his family would experience financial hardship as a result of the cancellation.
The applicant states that he wants his wife to obtain a Masters degree and his wife’s student visa application may be refused because of the cancellation. The Tribunal is mindful that if any application is made by the applicant’s spouse in the future, such application would be considered independently of the applicant’s case and on its own merits. The Tribunal is not satisfied that the application made by the applicant’s spouse would be adversely affected by the cancellation of his visa if the application is not dependent on the applicant holding an Australian visa.

The Tribunal acknowledges the applicant’s claim that he may experience hardship due to the persecution by the migration agent. For the reasons stated above, the Tribunal has formed the view that these claims are not credible.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had given incorrect answers and bogus documents with his application. The Tribunal finds that he did not comply with s.101 and s.103 of the Act and that there are grounds for cancelling the visa.
The Tribunal accepts that some hardship will be caused by the cancellation, partly because the applicant’s preference appears to live in Australia with his family and because the applicant will not be able to study and work in Australia, and any future visa applications are likely to be affected, at least in the immediate future. The Tribunal accepts that the applicant cannot sponsor his partner and child to live in Australia. The Tribunal accepts there are significant legal consequences to the visa being cancelled.
The Tribunal acknowledges that time has passed since the non-compliance. The Tribunal accepts that the applicant has made some contribution to the community and appears to have complied with the Australian laws.
The Tribunal has rejected the applicant’s claim that he will be unable to find employment in India as a result of the cancellation or that his future career would be ‘ruined’. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations. In particular, the Tribunal has formed the view that the applicant has been untruthful in his evidence regarding the threats of harm made to him and his family.
The Tribunal accepts that the applicant relied on the services of an agency in preparing his visa application and the Tribunal is prepared to accept that the applicant had given genuine documents to the agent. However, the Tribunal has also found that the applicant had not taken adequate steps to ensure his application contained correct answers and genuine documents. He had not checked the forms or the application itself. He has done very little to ensure he was complying with his legal obligations.
The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect information and even if the applicant did hold the relevant degree from a prescribed university, he did not rely on that qualification to obtain the visa. The Tribunal has also formed the view that the applicant provided other incorrect answers by not disclosing his marriage and his child. The Tribunal has formed the view that the applicant has been less than truthful in his evidence. The Tribunal finds that these considerations outweigh other matters that are favourable to the applicant.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.
Kira Raif
Senior Member

[2019] AATA 898

8 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction