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Santhanakumar (Migration) [2019] AATA  1491  (30 January 2019)

Last Updated: 27 June 2019

Santhanakumar (Migration)  [2019] AATA 1491  (30 January 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Kesavaperumal Santhanakumar

CASE NUMBER: 1826406

DIBP REFERENCE(S): BCC2018/2097544

MEMBER: Kira Raif

DATE: 30 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 30 January 2019 at 11:36am

CATCHWORDS
MIGRATION – cancellation – Skilled Recognised Graduate Class VF visa – Subclass 476 (Skilled – Recognised Graduate) – decision to grant visa based on incorrect answers and bogus documents – not satisfied applicant genuinely intended to study – counterfeit documents – non-compliance by applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(a), 5(b), 98, 100-105, 107, 109, 111, 140
Migration Regulations 1994 (Cth), cl 476.212, r 2.41

CASES
MIAC v Khadgi [2010] FCAFC 145; (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 visa applicant is a national of India born in July 1995. He was granted the Skilled Recognised Graduate Class VF visa on 11 September 2017. The visa was to be in effect until 25 March 2019. On 23 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 provided his response to the NOICC and his visa was cancelled on 5 September 2018. The applicant seeks review of the delegate’s decision.
3. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

Did the Notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
7. 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.
   1. The applicant made the application for the Class VF visa on 11 August 2017.
   2. 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 Krishna College of Engineering and Technology at Coimbatore between 1 August 2013 and 30 April 2017
   100. 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.
   4. The applicant submitted Form 80 in which he also stated in Part G that he completed a Bachelor of Engineering in Mechanical Engineering at Sri Krishna College of Engineering and Technology in April 2017.
   5. In support of his visa application the applicant provided
      1. a provisional certificate dated 11 May 2017 indicating that the applicant qualified for the award of Bachelor of Mechanical Engineering at Sri Krishna College of Engineering and Technology
      2. an academic transcript dated 15 April 2017 for the subjects he undertook
      3. statements of grades dated between February 2014 and April 2017.
   6. On the basis of this information, the applicant was granted the Skilled Recognised Graduate Subclass 476 visa on 11 September 2017 and he arrived in Australia on 25 September 2017.
   7. Validation checks by the Department show that the provisional certificate, academic transcript and the statements of grades provided by the applicant are identical to those provided by a number of other persons claiming to have obtained Bachelor of Engineering qualifications from Sri Kirshna College of Engineering and Technology. In each case, the subject grades, dates of completion, credits and cumulative grade point average are an identical match. Only the graduate’s personal details (names, date or births, photos) have been changed but in every other respect the documents are identical.
10. 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. He paid a fee to the agent and provided the agent with his educational documents from Sri Ranganathar Institute of Engineering, as well as and other documents. The applicant stated that he trusted the agent to present his case, as they had successful applications in the past, and did not expect the agent to provide fraudulent documents. The applicant states that he was not aware of the visa eligibility criteria and had no knowledge that the agent would provide counterfeit documents to get a successful outcome. It was not his intention to provide false information. The applicant notes that the agent has now been ‘blacklisted’ in India.
11. In his submission to the Tribunal the applicant provided evidence relating to his interactions with the agency and evidence of payment, as well as documents relating to his qualifications from Anna University. The applicant told the Tribunal that he did complete a Mechanical Engineering course but at a different institution.
12. The applicant’s evidence indicates that he had not obtained a Bachelor of Mechanical Engineering from Sri Krishna of Engineering and Technology as a result of study between August 2013 and April 2017. On the basis of this information, the Tribunal finds that the provisional certificate, transcript and statements of grades from Sri Krishna College Engineering and Technology are bogus documents either within the meaning of s. 5(a) because it purport 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.
13. 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 Krishna College of Engineering and Technology between August 2013 and April 2017. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given. The Tribunal further finds that applicant declared in his application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.
14. The Tribunal acknowledges the applicant’s submission that he did not provide the bogus qualifications to the agent or the Department and that he was unaware of the fraud which was committed by the agent. The Tribunal acknowledges 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.
15. 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.
16. 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.
17. 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?

18. 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).
19. 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

20. The correct information is that the applicant did not complete the Bachelor of Mechanical Engineering at Sri Krisha College of Engineering and Technology between August 2013 and April 2017. His evidence to the delegate is that he completed a Bachelor Engineering at Sri Ranganathar Institute of Engineering and Technology and Unnamalai 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)

21. The Tribunal has found that the academic reports are bogus documents. A genuine document would not indicate that the applicant obtained a Bachelor of Mechanical Engineering at Sri Krishna 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

22. Clause 476.212 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 Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s study.
23. The applicant told the Tribunal that his university was affiliated with Anna University and that he did complete an Engineering degree in an affiliated university. However, the applicant did not rely on these qualifications when making the visa application. He relied on the qualifications which he did not have. It is not necessary for the Tribunal to determine whether the applicant would have been granted the visa if the correct information was known. The Tribunal finds that he decision to grant the visa was based, in part, on incorrect information and bogus documents.

The circumstances in which the non-compliance occurred

24. 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 provided to the Tribunal evidence of his interactions with the agent and evidence of payment to the agent.
25. The applicant told the Tribunal that he could not get an engineering job in India and when he saw information about the visa, he contacted the agent. He communicated with the agent through email because the agent was far away from his home. He sent all the original documents to the agent. He did not sign any forms. The applicant stated that it was not until he received the NOICC that he realised that incorrect information was provided.
26. 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 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.
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 was correct and accurate. The applicant told the Tribunal that he had not checked any papers before his application was lodged.
28. 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

29. The applicant did not provide information about his present circumstances in his response to the NOICC.
30. The applicant told the Tribunal that he is feeling low and depressed. The applicant presented no medical evidence to support these claims and the Tribunal does not accept that the applicant suffers from any medical condition.
31. The applicant told the Tribunal that he lives with friends who provide him with food in return for housework. He stopped driving the car because he has too much on his mind. The Tribunal is mindful that if the applicant finds life in Australia difficult, he is able to leave the country at any time if he believes his circumstances here are too harsh and would be better elsewhere. The applicant told the Tribunal that his plan is to resolve the visa issue and study and settle in Australia. The Tribunal is mindful that the visa in question would be due to expire in March 2019 when the applicant would be expected to leave the country. The visa would not permit the applicant to settle in Australia or study in Australia. The applicant is eligible to seek another visa that may be more suitable for his needs, if he wants to remain in Australia, although the Tribunal acknowledges that there may be limitations on the future visa applications the applicant may make.
32. The applicant told the Tribunal that he stays with his friends who are supporting him financially. The applicant states that he did not do anything wrong.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

33. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the above provisions

Any other instances of non-compliance by the visa holder known to the Minister

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

The time that has elapsed since the non-compliance

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

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

36. There are no known breaches of the law.

Any contribution made by the holder to the community.

37. The applicant has not presented any evidence of having made a contribution to the community in response to the NOICC. The applicant told the Tribunal that he comes from a farming family and understands the difficulties of the farmers, so he made donations to the farmers. The Tribunal accepts that evidence. The applicant told the Tribunal that he wants to be a good citizen of Australia. The Tribunal is mindful that the applicant does not hold a permanent visa and only has a short-term temporary visa, so the applicant’s aspirations about being a good citizen of Australia are premature.
38. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

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

Whether there would be consequential cancellations under s.140

40. There are no persons whose visas would be subject to cancellation under s. 140.

Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.

41. There are no children who would be affected by the cancellation.
42. The applicant told the Tribunal that once his visa was cancelled, he was contacted by Indian reporters and he is now scared to return because the agency has political affiliations. The applicant also said that he had borrowed money from others and those he borrowed money from would harm him. He states that even if he returns to India, he cannot live in his own state and would have to live in a different part of the country.
43. The Tribunal does not accept the applicant’s claims.
44. Firstly the applicant presented no probative evidence to support his claims. In his written response to the NOICC the applicant referred to his interactions with a reporter. He presented no evidence of having received any threats or any evidence of such threats. He presented no evidence of the agency having any political links. He presented no evidence of the agency having any interest in the applicant. The Tribunal is not required to accept the applicant’s claims unquestioningly.
45. Secondly, the applicant raised these claims for the first time in his oral evidence to the Tribunal. The applicant provided a written response to the NOICC in which he made no mention of any harm he feared, even though he did refer to his chat with a reporter. The applicant also provided written evidence to the Tribunal. The applicant was represented throughout the review by a migration agent. At no time prior to the hearing did the applicant raise any concerns about his safety or well-being as a result of his clamed communication with the agent or as a result of his loan or for any other reason. The applicant’s claims were raised for the first time in his oral evidence to the Tribunal. The Tribunal has formed the view that the applicant’s evidence is a recent invention.
46. Thirdly, the Tribunal also notes that the visa in question was due to expire in March 2019. It would not offer the applicant any protection beyond that date. The applicant received the NOICC in July 2018 and he knew from that time that there was at least a possibility of his visa being cancelled. The visa was cancelled in September 2018 and from that time the applicant knew that he could not remain in Australia on a long term basis and that he could not rely on Australia’s protection. The Tribunal is of the view that if the applicant was truthful in his evidence, he would have explored other options, including protection visas. The applicant told the Tribunal that he has not done that. The applicant’s lack of any action in relation to seeking protection in Australia – particularly as the applicant is represented by a registered migration agent - supports the Tribunal’s view that the applicant has fabricated his claims about his fear of harm. The Tribunal does not accept that the applicant has a genuine fear of harm upon return to India.
47. Nevertheless, if the applicant does believe that he would be subjected to harm the applicant has an option of seeking a protection visa where such claims would be assessed. Nothing prevents the applicant from making that application.
48. 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

49. The applicant told the Tribunal that he wants to settle in Australia. He wants to study Master of Engineering at Swinburne University. He claims that he has savings and can get financial support from others. The Tribunal notes that the applicant has not presented any evidence of having taken steps to apply for a Student visa prior to the cancellation of his visa. The applicant told the Tribunal that he wanted to complete one year of work experience first before applying for the visa. That is, the applicant decided that working in Australia and earning money was of greater importance to him than studying. The Tribunal is not satisfied that the applicant genuinely intended to study in Australia. In such circumstances, the Tribunal does not accept that the inability to study in Australia as a result of the cancellation would cause significant hardship to the applicant.
50. The Tribunal is also mindful that the applicant is eligible to make a Student visa application in the future, despite the cancellation. The Tribunal acknowledges that the applicant would be subject to an exclusion period which may delay his study plans, although there is also a provision to waive that requirement.
51. The applicant told the Tribunal that he is facing a lot of difficulties because he does housework to survive. It is unclear to the Tribunal how these difficulties would be resolved by the applicant’s temporary visa being reinstated, given the short period of visa validity. The applicant said that he travelled to Australia to gain 12 months work experience and improve his career and now his career is ruined. The Tribunal finds that evidence problematic. The applicant was granted a temporary visa. He told the Tribunal that he did complete nine months of work experience in his field before his visa was cancelled. Even if his visa is reinstated, the applicant cannot complete the 12 months work experience on his present visa and if the applicant wishes to pursue another visa, he needs to consider these options independently.
52. 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 did not comply with ss. 101 and 103.
53. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that the applicant has made a contribution to the community. The Tribunal accepts that certain hardship will be caused by the cancellation because the applicant will not be able to pursue other visas onshore and because he may have limited study options. He will not be able to remain in Australia and work in Australia, as is the applicant’s preference. The Tribunal also acknowledges that there will be serious legal consequences to the applicant’s visa being cancelled, most notably as the applicant’s future migration options would be limited. His Student visa options would also be limited by the cancellation, at least in the immediate future.
54. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.
55. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers and bogus documents. While the applicant submits that he did complete an engineering degree from a prescribed institution, that is not the qualification he relied on when making the visa application. The Tribunal has formed the view that the applicant had not taken adequate steps to ensure the correctness of his application. Indeed, he appears to have been quite indifferent about the process. Having instructed an agent to lodge the application on his behalf, the applicant then did nothing to check the content of the application. In the Tribunal’s view, the fact that decision was based on incorrect answers and bogus documents, as well as the circumstances in which the non-compliance occurred, outweigh other considerations.
56. 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

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

Kira Raif
Senior Member