1725571 (Migration)

[2019] AATA 6071

1725571 (Migration) [2019] AATA 6071 (14 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725571

HOME AFFAIRS REFERENCE(S):          BCC2017/2969486

MEMBER:K. Chapman

DATE:14 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 September 2019 at 2:23pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant provided or caused to be provided a bogus document– two Australian citizen children – limited evidence pointing to the parental role performed by the applicant – no compelling need to remain in Australia – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359, 360, 362, 375, 376
Migration Regulations 1994 (Cth), r 2.43

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (‘the Act’). The applicant [is] a Nigerian national.

2. The visa was cancelled under s.116(1)(g) of the Act on the basis that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person, pursuant to the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 (‘the Regulations’). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 19 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. During the review process, correspondence passed between the Tribunal and the applicant’s authorised recipient for correspondence, Ms Ayinde (the ‘recipient’), as will be outlined in further detail.

4. On 21 May 2019, the Tribunal wrote to the applicant, through his recipient, pursuant to s.359A of the Act inviting him to comment on or respond to certain information and to provide him with material pursuant to s.362A of the Act. The Tribunal notes that on the same day, the recipient made contact by telephone with the Tribunal Registry confirming receipt of the aforementioned invitation and material. A Tribunal Officer explained to the recipient the consequences of the applicant not responding to the information by the due date of 4 June 2019 and outlined that it was possible to request an extension of time to respond if required. The recipient indicated she would send the material to the applicant. No response to the s.359A invitation dated 21 May 2019 was received by the Tribunal within the specified timeframe, nor was an extension of time requested.

5. The Tribunal is satisfied that the s.359A invitation was properly despatched to the applicant’s recipient and that no response to it was received within the specified timeframe. Where an applicant is invited to provide comments or response to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(2) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

6. On 2 July 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant, through the recipient, inviting him to comment on or respond to certain information not later than 16 July 2019. The applicant responded on 16 July 2019, submitting a typed statement which is dated 14 July 2019. This response referred to attachments that were not sent to the Tribunal. On 17 July 2019, the Tribunal wrote to the applicant, through his recipient, advising that no attachments were received and inviting him to provide the further documentation as soon as possible. On 22 July 2019, the Tribunal again wrote to the applicant, through his recipient, drawing his attention to the lack of attachments received with his s.359A response and inviting him to provide any further material in the review by 1 August 2019. No response was received to the aforementioned request within the specified timeframe.

7. On 20 August 2019, the applicant made contact with the Tribunal Registry by telephone indicating he encountered difficulties sending documents electronically and he was advised he could do so by post if he wished. On 6 September 2019, the applicant submitted further material to the Tribunal and listed himself as the person to receive correspondence in relation to the review. All submitted material has been duly considered by the Tribunal.

8. The Tribunal has carefully considered whether to afford further time to the applicant to provide a response to the s.359A invitations, or to provide further material in support of his application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes.

9. It is worth pausing to reflect that over three months have elapsed since the initial s.359A invitation was despatched by the Tribunal. Further, during July 2019 the Tribunal wrote twice to the applicant in order to afford him more time to provide the attachments to his response to the second s.359A invitation, but received no response within the specified timeframe. Additionally, the Tribunal is satisfied that the applicant’s submission of material on 6 September 2019 has enabled him a fair opportunity to present his case. Given the aforementioned chronology, which has provided the applicant with ample opportunity to submit material in support of his case, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain his views on the s.359A information. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    BACKGROUND

11. The visa cancellation decision record of 12 October 2017 (which was provided to the applicant pursuant to s.359A of the Act) reveals the following particulars:

    a.on 5 December 2016, the applicant made an electronic application for a Subclass 500 Student visa;

    b.on 9 December 2016, the applicant was granted a Subclass 500 Student visa by a locally engaged Departmental employee in Pretoria, South Africa;

    c.on 25 December 2016, the applicant arrived in Australia;

    d.an investigation indicates that a locally engaged Departmental employee acted improperly by way of fraudulent conduct to grant the applicant’s visa;

    e.on 25 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa;

    f.on 6 September 2017, the applicant responded in writing to the NOICC indicating that his visa application was handled by an agent (whom the Tribunal will refer to as Mr C as outlined in greater detail below) who used an unauthorised email address without the applicant’s knowledge, he never was in contact with the Department himself, he has been a good student in Australia and submitting material in support of his contentions to be a genuine student and not involved in wrongdoing (the Tribunal has duly considered the aforementioned material); and

    g.on 12 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa. 

12. On 19 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. As previously outlined Ms Ayinde, a family member of the applicant, was initially listed as the authorised recipient for correspondence in relation to the review application. The applicant subsequently made himself the recipient for correspondence on 6 September 2019.  

13. On 21 May 2019, the Tribunal Registry sent copies of documents contained in the Departmental and Tribunal files to the applicant, through his recipient, pursuant to s.362A of the Act. Much of the material was despatched in redacted form, being subject to non-disclosure certificates issued by the Department (and also due to the privacy considerations contained in Australian Privacy Principle 6). Included in the aforementioned material was a copy of the ‘Referral to General Cancellations Network Cancellation Consideration’ document, ‘Visa Cancellation Referral Report’ prepared by the Enforcement Command – Investigations of the Australian Border Force, two ‘Investigation Report LES Misconduct’ documents pertaining to Locally Engaged Staff (LES) at the Australia High Commission (AHC) in Pretoria, South Africa, and an ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017 (also known as the ‘Key findings PMOI’ document).

14. In summary, the investigative reports referred to above outline that the Department launched an investigation into the conduct of Locally Engaged Staff in Pretoria when suspicions were raised that some Nigerian Student visa holders were engaging in criminal activity following their arrival in Australia. The investigation concluded that two Locally Engaged Staff were bypassing established Departmental procedures when granting Student visas to a cohort of Nigerian applicants. One of the staff, whom the Tribunal will refer to as Officer A, was found to have corruptly received payments from a third party in Australia (whom the Tribunal shall refer to as Mr C, who was himself granted a Student visa). The other staff member, whom the Tribunal will refer to as Officer B, was found to have been allocated certain Nigerian Student visa applications to process by Officer A and processed them without sufficient scrutiny in an improper manner contrary to established Departmental procedures. Officers A and B were also found to have colluded with each other during the investigation into their alleged activities. In sum, neither Officer A nor B had legitimate authority to process the Nigerian Student visa applications according to established Departmental procedures and they were both found to have acted improperly in breach of their conditions of employment.

15. The applicant lodged his Student visa application on 5 December 2016 and the visa was granted by Officer A on 9 December 2016. The investigative reports indicate that Student visa applicants from Nigeria are deemed to be ‘high risk’ applicants who are subject to greater scrutiny in relation to the processing of such applications (see the document ‘Student visa Assessment methodology’ at folios 141-156 of Departmental file BCC2017/2969486, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below). Further, the Department engaged a senior Australian based Officer (the ‘Subject Matter Expert’) to conduct an audit on a selection of Nigerian Student visa holders who were alleged to have been granted their visas contrary to the established procedures for high risk applicants.

16. The applicant was one such individual subject to audit (see the document ‘Student (subclass 500) visa assessment – schedule 2’ at folios 63-66 and 130-140 of Departmental file BCC2017/2969486, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below). The Subject Matter Expert concluded that the applicant failed to meet the requirements for the Student visa at the time of its grant. This conclusion is also reflected in the ‘Investigation Report LES Misconduct’ pertaining to Officer A (see ‘Allegation Three’ at folio 50 of the Tribunal file, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below).

17. As previously indicated, much of the material in the Departmental and Tribunal files was subject to redaction on the basis of non-disclosure certificates issued by the Department and also on account of the privacy considerations contained in Australian Privacy Principle 6 (APP 6). Liaison between the Tribunal and the Department regarding the issue of non-disclosure resulted in an initial certificate pursuant to s.375A of the Act dated 21 November 2017, in relation to file BCC2017/2969486, being revoked on 19 February 2018. It was replaced with a certificate pursuant to s.376 of the Act dated 19 February 2018. Further material was supplied by the Department to the Tribunal under cover of a certificate pursuant to s.376 of the Act dated 17 April 2018. In addition, the Department file BCC2016/4105636, pertaining to the applicant’s Student visa application, is also subject to a certificate pursuant to s.375A of the Act dated 31 July 2018. The presence of the non-disclosure certificates and associated redaction of material was canvassed with the applicant by the Tribunal in correspondence pursuant to s.359A of the Act (with copies of the non-disclosure certificates enclosed) as is referred to in greater detail below.

18. On 21 May 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant, through his recipient, inviting him to comment on or respond to the following information:

    -You were one of 21 Nigerian national clients for whom it is believed the grant of their student visa was a result of corrupt conduct by a Departmental officer.

    -It is purported that the Departmental officer executed these grants without the visa application cases being allocated to them, in circumstances where they were not authorised to process such cases and where they failed to apply the mandatory guidelines.

    -You were flagged as a ‘high-risk’ client on the basis of your Nigerian nationality. Contrary to mandatory procedural requirements for ‘high-risk’ clients, the Departmental officer did not check the veracity of your employment or past education claims.

    -The deficiencies in the Departmental officer’s processing of your application indicated that without the conduct, as set out above and as detailed in the Visa Cancellation Referral Report (f.1-62 of Department file BCC2017/2969486 f.29-59 of Tribunal file 1725571), the visa would not have been granted.

19. As previously outlined, the Tribunal notes that on 21 May 2019, the recipient (Ms Ayinde) made contact by telephone with the Registry confirming receipt of the material despatched pursuant to s.362A of the Act and the s.359A invitation. The Tribunal Officer explained to her the consequences of the applicant not responding to the information by 4 June 2019 and outlined that it was possible to request an extension of time to respond if required. The recipient indicated she would send the material to the applicant. No response to the s.359A invitation dated 21 May 2019 was received by the Tribunal within the specified timeframe and as earlier described the applicant lost his right to attend a review hearing.

20. On 2 July 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant, through his recipient, inviting him to comment on or respond to the following information:

    ·The delegate’s decision to cancel your Student visa (copy enclosed) alleges that there is a reasonable suspicion that this visa was granted to you by a Departmental employee in Pretoria, South Africa engaging in fraudulent conduct;

    ·It is alleged that you were granted your Student visa by a Departmental employee in a fraudulent manner including by way of your case not being allocated to them or processed in accordance with established Departmental procedures during a period where it is alleged that several visa applicants were inappropriately granted Student visas by staff at the Australian High Commission at Pretoria, South Africa (see Department file BCC2017/2969486 folios 1-30 ‘Investigation Report LES Misconduct’ (aka Officer A), folios 31-56 ‘Investigation Report LES Misconduct’ (aka Officer B), folios 57-62 ‘Visa Cancellation Referral Report’ and the associated Annexures to these Reports including but not limited to ‘Key Findings page PMOI Nairobi Report’ at folios 128-129 (where it is indicated there is active organised people smuggling of Nigerian citizens through the use of fraudulent documentation to obtain Student visas facilitated by a locally engaged employee and it is almost certain that a locally engaged employee ‘is receiving money in return for granting student visas containing false information and fraudulent documents’), a detailed assessment of your circumstances by a Departmental Subject Matter Expert at folios 63-66 & 130-140, and also the Referral to the General Cancellations Network Cancellation Consideration documents at folios 67-72, and the contents of Departmental file BCC2016/4105636 pertaining to your application for the Student visa);

    ·The ‘gist’ of the material contained at folios 141-156 of Department file BCC2017/2969486, which has not been released in full to you, is information recorded in a document entitled ‘Student visa Assessment methodology’ (and attachments) which provides guidance to Departmental Officers for the processing of Student visa applications including the necessity to perform certain checks upon information such as that relating to identity, enrolment, English language ability, employment, finances and character. Relevantly for offshore applicants considered to be ‘high risk’, more rigorous scrutiny is given to examination of the Genuine Temporary Entrant requirement such as checking employment and education documents for any evidence of fraud, checking study and employment history particulars and also assessing the other relevant circumstances of the applicant such as financial sponsorship in a more detailed fashion. Generally, an applicant would be interviewed by a Departmental Officer in relation to such visa applications;

    ·The Departmental file BCC2017/2969486 at folios 63-66 & 130-140 contains an audit by a Departmental Subject Matter Expert of your Student visa application. The Departmental expert determined that you did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as your submitted Genuine Temporary Entrant statement, employment reference, sponsor letter and ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. Further, the Tribunal notes that Departmental file BCC2016/4105636 pertaining to your application for the Student visa contains the aforementioned particulars referred to by the Departmental Subject Matter Expert. For completeness, the Tribunal also notes that Ministerial Direction 69 requires decision makers to consider a range of factors with respect to the Genuine Temporary Entrant requirement including an applicant’s circumstances in their home country, potential circumstances in Australia and value of the course to their future, their immigration history, matters related to minors and any other relevant matters;

    ·It is alleged that you provided or caused to be provided a bogus document to the Department of Immigration and Border Protection (now the Department of Home Affairs or ‘the Department’), namely ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ dated December 2012 with Certificate Number 210121, as indicated by the assessment of the International Organization for Migration (IOM) and associated referral documentation (see folios 37, 84-86 of Department file BCC2016/4105636);

    ·The Tribunal notes that portions of the above information contained in the Departmental files are subject to Certificates pursuant to s.376 of the Act dated 19 February 2018 and 17 April 2018 (noting an earlier Certificate pursuant to s.375A of the Act dated 21 November 2017 was revoked by the Department on 19 February 2018) and also a Certificate pursuant to s.375A of the Act dated 31 July 2018. Accordingly, you have been provided with redacted copies of the relevant information. You are invited to make submissions on the validity of the aforementioned Certificates if you wish to do so; and

    ·The Tribunal file at folios 15-25 contains your records of study from the Provider Registration and International Student Management System (PRISMS) indicating limited course completion by you.

1. On 16 July 2019, the applicant submitted a typed statement dated 14 July 2019 in response to the above s.359A invitation. This response referred to attachments that were not sent to the Tribunal. On 17 July 2019, the Tribunal wrote to the applicant, through his recipient, advising that no attachments were received and inviting him to provide the further documentation as soon as possible. On 22 July 2019, the Tribunal again wrote to the applicant, through his recipient, drawing his attention to the lack of attachments received with his s.359A response and inviting him to provide any further material in his case by 1 August 2019. No response was received to the aforementioned request within the specified timeframe. As previously outlined, the applicant made contact with the Tribunal Registry by telephone on 20 August 2019 indicating he encountered difficulties sending documents electronically and he was advised he could do so by post if he wished.

2. On 6 September 2019, the applicant submitted documents to the Tribunal including, but not limited to, a written submission dated 14 July 2019, copies of his Nigerian Passports (current and expired), education records from Nigeria, his Birth Certificate, letter from the Australian Business School dated 16 January 2018, documents pertaining to the grants of Bridging Visa E, a receipt for a protection visa application dated 22 November 2017, Marriage Certificates dated 2 August 2019, two Queensland Birth Certificates for children born in May 2019 and a photograph depicting two children. The applicant also submitted documents removing Ms Ayinde as his authorised recipient and requesting all correspondence be sent to him. All submitted material has been duly considered by the Tribunal.   

   Validity of the Non-Disclosure Certificates

3. The Tribunal notes that no submissions were made by the applicant challenging the validity of the non-disclosure certificates. The Tribunal is satisfied that the s.376 certificates dated 19 February 2018 and 17 April 2018 are valid as public interest grounds are properly outlined in them. Following careful consideration, the Tribunal has exercised its discretion not to release the redacted material under cover of the certificates given the public interest grounds outlined (noting also that redactions have been made in accordance with APP 6). The Tribunal notes that much of the redacted material relates to third parties and is not relevant to this review.

4. Further, the Tribunal is satisfied that the s.375A certificate dated 31 July 2018 is valid given the public interest ground cited therein. This certificate pertains to a portion of the IOM verification report, regarding the West African Examinations Council (WAEC) West African Senior School Certificate dated December 2012 with Certificate Number 210121, which would reveal the processes involved in conducting the verification. Accordingly, given the validity of the s.375A certificate, the Tribunal has not released that portion to the applicant. The Tribunal notes that the bulk of the verification report, including its conclusions, is not covered by the s.375A certificate and was released in its original format to the applicant through the s.359A correspondence.

5. Following careful consideration, the Tribunal is satisfied that ‘the gist’ of all relevant material which is redacted on account of the s.375A and s.376 certificates has been raised with the applicant pursuant to the s.359A correspondence. For the sake of completeness, the Tribunal also notes that it has not placed any weight in an adverse fashion upon material not disclosed in full to the applicant unless specifically referred to pursuant to the procedure in s.359A of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case these include the ground set out in s.116(1)(g) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. The prescribed grounds for cancellation are set out in r.2.43 of the Regulations.

7. In the present case, the ground in r.2.43(1)(o) is relevant as the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. The Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa dated 25 August 2017 identified s.116(1)(g) of the Act and r.2.43(1)(o) of the Regulations, in the context of an investigation suggesting a Departmental employee may have acted improperly to grant the visa therefore arousing a reasonable suspicion it was obtained as a result of fraudulent conduct, as the proposed basis for cancellation. The response of the applicant, on 6 September 2017, advised he had lived in South Africa for six years where he was never involved in criminal behaviour, wanted to study in Australia to broaden his educational and cultural experience, relied upon Mr C to lodge his visa application, claimed that Mr C set up an unauthorised email account which was used in matters associated with that application, and he had been a good student whilst in Australia.

9. Supporting material such as the Statutory Declaration of the applicant dated 6 September 2017, the Statement of Purpose for study, a letter from the Australian Business School dated 1 September 2017, Certificate of English Studies dated 17 February 2017, and email traffic concerning himself and Mr C was also submitted by the applicant. The aforementioned material has been duly considered by the Tribunal.

10. In summary, the applicant claimed in his response to the NOICC that his visa application was made by Mr C who had utilised an unauthorised email account in connection with that application. Further, he contended that he was a good student in Australia who had passed his English language course and was about to finish a Diploma in Management. The Tribunal has duly considered the applicant’s contentions and supporting material in response to the NOICC and affords it some weight against cancellation of his Student visa. For completeness, the Tribunal is satisfied that the NOICC was correctly framed and properly identified the basis of the proposed visa cancellation.

11. In relation to his review application, the applicant expanded upon the contentions outlined above. In his submission dated 14 July 2019, the applicant advised that he has applied for a protection visa as, “…I was scared to go back, being that I have not been back since I left the country on the 27^th August 2011.” He added, “My reasons for not wanting to return back to Nigeria is because I do not have any opportunities to study, there is no working opportunities, and I have no family back in Nigeria so I decided to remain in Australia to be able to study and learn new skills as I see better future opportunities here in Australia.” Additionally, the applicant contended that he did not have direct contact with any Departmental employee in relation to his Student visa application, advised that his “…application was submitted by myself” to the Australian High Commission on Johannesburg, he only had contact with Mr C to assist him with his visa application and provided some documentation to him (whilst other documents were provided by Mr C’s agency), he wants to have a good relationship with his children in Australia and obtain full custody of them and he also wishes to settle down with his partner in Australia. The aforementioned material is afforded some weight against cancellation of the Student visa.

12. As previously outlined, the applicant submitted supporting material with his submission on 6 September 2019 including, but not limited to, copies of his Nigerian Passports (current and expired), education records from Nigeria, his Birth Certificate, letter from the Australian Business School dated 16 January 2018, documents pertaining to the grants of Bridging Visa E, a receipt for a protection visa application dated 22 November 2017, Marriage Certificates dated 2 August 2019, two Queensland Birth Certificates for children born in May 2019 and a photograph depicting two children. All submitted material has been duly considered by the Tribunal. The aforementioned material indicates that the applicant is recorded on Queensland Birth Certificates as the father of two children born in May 2019 to Ms D in Brisbane and that he also married Ms E on 2 August 2019 at The General Registry Office in Brisbane. The aforementioned material is afforded some weight against cancellation of the Student visa.

13. The Tribunal notes that the applicant submitted documents from the Burkinsheen International Secondary School in Nigeria indicating he completed his secondary schooling in mid-2002 having done his Senior School Certificate. Having regard to the submitted identity documents, the applicant would then have been aged approximately 13 years. The applicant also submitted a document from the Kwara State Polytechnic dated 19 May 2004 which purportedly indicates he was offered provisional admission to a 3 year National Diploma in Mechanical Engineering in the 2003/04 Academic year. He was aged approximately 14 years at the date of that letter. The letter from the Australian Business School dated 16 January 2018 advises that the applicant completed the requirements for a Certificate IV in New Small Business in September 2017, although his certificate was not awarded until the date of the letter as a ‘student handbook/checklist’ was not submitted until then. The aforementioned material is afforded some weight against cancellation of the Student visa.

14. The Tribunal notes that the applicant submitted documentation pertaining to decisions of the Department dated 29 December 2017 and 18 January 2018 for grants of Bridging Visa E. These decisions indicate that both grants were subject to Condition 8101 (No Work) and Condition 8207 (No Study). The earlier grant was made in relation to the applicant’s protection visa application lodged on 21 November 2017. On 5 January 2018, according to the decision record in respect of the later Bridging Visa E grant, the applicant applied for a new Bridging Visa E with work rights. On 18 January 2018, the Department declined to grant the new Bridging Visa E with work rights due to a lack of satisfaction as to the applicant’s claimed straitened circumstances.

15. The Bridging Visa E decision record of 18 January 2018 notes, “Whilst you claim to have no knowledge of the details associated with your Student visa application and the requirement to have sufficient funds to study and reside here, it is implausible that you did not anticipate that you would need additional funds to pay for your expenses in Australia, outside of the work permissions that usually come with a Student visa. You have provided no information about the money that you brought to Australia, your income in the period to the cancellation of your Student visa and to the current day, nor your current expenses. I am therefore not satisfied that I have a complete view of your financial circumstances.” It is apparent that the applicant did not seek to have the No Study condition lifted in his application for the Bridging Visa E lodged on 5 January 2018 and this weighs in favour of cancelling the Student visa.

    The ground for cancellation is enlivened

16. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(g) of the Act is enlivened. The prescribed ground in r.2.43(1)(o) provides, ‘that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.’ Departmental policy regarding the aforementioned prescribed ground indicates:

    Scope - Fraudulent conduct

    The prescribed ground for cancellation in regulation 2.43(1)(o) is that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

    'Fraudulent conduct' is not defined in the Act or Regulations. The Macquarie Dictionary defines fraud as "advantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false".

    'Any person' means the visa holder or any other person, including a departmental employee.

    Reasonable suspicion that a visa has been obtained as a result of fraudulent conduct

    The delegate must reasonably suspect that the visa was obtained as a result of the fraudulent conduct of any person. That is, it is not enough to reasonably suspect that there was fraudulent conduct by a person - the delegate must reasonably suspect that if it were not for the fraudulent conduct the visa would not have been granted.[1]

    [1] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’.

17. The Tribunal notes that the ordinary English language meaning of ‘fraud’ is recorded in the Macquarie Dictionary (online edition) as involving:

    deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.[2]

    [2] Macquarie Dictionary (online edition), accessed 11 September 2019.

18. Accordingly, the Tribunal forms the view that the term ‘fraudulent conduct’ is that which contains the character described in the above dictionary definition (for example, that involving an element of deceit seeking to gain an unfair advantage). Further, having regard to the guidance in Departmental policy, the Tribunal considers that when assessing the relevant ground for visa cancellation through the lens of the term ‘reasonably suspects’, a causal link is required between the obtaining of the visa and the fraudulent conduct of any person, in order to enliven that ground. Having regard to the judicial remarks of Justice Bromberg in the matter of Patel[3], the Tribunal notes that it is not necessary for the decision maker to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct.  

    [3] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).

19. Regarding the term ‘reasonably suspects’, the Tribunal notes the judicial guidance establishing the following principles. It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient[4]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[5] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[6] Whether a different decision maker would have formed the same state of suspicion is irrelevant, what matters is that the state of reasonable suspicion reached by the Tribunal is open to it on the facts.[7] The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[8] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[9] Whether a suspicion is reasonable is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case.[10] The required state of mind is suspicion, not belief, so that the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[11]

    [4] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).

    [5] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [86] (per Flick and Rangiah JJ) citing George v Rockett (1990) 170 CLR 104 at 115 – 116.

    [6] Sun v Minister for Immigration and Border Protection at [48] (per Flick and Rangiah JJ).

    [7] Ibid at [48] (per Flick and Rangiah JJ).

    [8] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18] (per Judge Driver).

    [9] Ibid.

    [10] Guo v Commonwealth of Australia [2017] FCA 1355 at [44] (per Jagot J) and Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [23].

    [11] Guo v Commonwealth of Australia [2017] FCA 1355 at [35].

20. After careful consideration of the evidence in the present matter, the Tribunal reasonably suspects that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer A for the reasons that follow. As previously outlined, the Tribunal raised elements of the investigative reports with the applicant pursuant to s.359A of the Act. When considered holistically, it is apparent that the applicant was considered a ‘high risk’ Student visa applicant due to his Nigerian nationality and accordingly his visa application should have been processed with the additional scrutiny outlined in the document ‘Student visa Assessment methodology’, by a Departmental Officer (including LES) with formal authority to do so in accordance with the established procedures outlined in the investigative reports. The Tribunal accepts the conclusions reached in the investigative reports that Officer A had no legitimate authority to process Nigerian Student visa applications according to established Departmental procedures, corruptly received payments from Mr C and also was found to have acted improperly in breach of employment conditions. The Tribunal places high weight upon the evidence and findings contained in the investigative reports, including the established Departmental procedures outlined, given their official source, their detailed content and lack of persuasive evidence to disturb their veracity.

21. The Departmental Subject Matter Expert audit of the applicant’s Student visa application indicates that, at the time the visa was granted on 9 December 2016, the applicant did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as his submitted Genuine Temporary Entrant statement, employment reference, sponsor letter and ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. If established Departmental processes were followed, such matters would have prevented the grant of the Student visa at that time without further checks being performed. Accordingly, the Tribunal is satisfied that the applicant’s Student visa application was tainted by suspicious supporting material when granted by Officer A, who acted in contravention of established Departmental procedures without formal authority to grant the visa.

22. In reaching the above conclusion, the Tribunal has duly considered the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, his Statutory Declaration dated 6 September 2017, the Statement of Purpose for study, a letter from the Australian Business School dated 1 September 2017, Certificate of English Studies dated 17 February 2017, education records from Nigeria, and the letter from the Australian Business School dated 16 January 2018 noting completion requirements for the Certificate IV in New Small Business were satisfied in September 2017). Some weight is afforded by the Tribunal to this material, however, its submission post-visa grant does not displace the conclusion that the applicant’s Student visa application was tainted by suspicious supporting material such that he did not satisfy the criteria for the grant of the visa at the time it was granted by Officer A, who acted without formal authority and in contravention of established Departmental procedures to make the grant.

1. The Subject Matter Expert also expressed concerns that bogus documents may have been submitted with the applicant’s Student visa application. The Tribunal notes that the applicant’s Student visa application was accompanied by submission of a WAEC West African Senior School Certificate dated December 2012 with Certificate Number 210121 as revealed at folio 37 of Department file BCC2016/4105636. As was raised with the applicant pursuant to s.359A of the Act, the International Organization for Migration (IOM) assessed that document to be counterfeit. The Tribunal notes and accepts that the ordinary English language meaning of ‘counterfeit’ is recorded in the Macquarie Dictionary (online edition) as:

   an imitation designed to pass as an original.[12]

   [12] Macquarie Dictionary (online edition), accessed 13 September 2019.

2. The Tribunal has carefully considered the term ‘bogus document’ as defined in s.5(1) of the Act (see the Attachment to this decision). This definition includes a document that is ‘counterfeit’. The Tribunal has closely reviewed the IOM verification report dated 5 July 2017, which indicates that the WAEC West African Senior School Certificate dated December 2012 with Certificate Number 210121 is not genuine and is counterfeit. Given the standing of the IOM and its ability to conduct verification checks in Nigeria, the Tribunal places high weight upon their assessment. Following careful consideration, the Tribunal finds that the document is counterfeit and is a bogus document pursuant to s.5(1) of the Act.

3. It is apparent that the counterfeit document dated 2012 records more favourable academic performance than is contained in the submitted secondary school reports from Burkinsheen International Secondary School arising from 2002. Indeed, the 2002 reports indicate that the applicant failed several subjects. Accordingly, the Tribunal forms the view that the submission of the counterfeit document dated 2012 was designed to create a false impression of the applicant’s academic prowess.

4. The Tribunal notes that the applicant contends he relied upon Mr C for assistance with his visa application. In his submission of 14 July 2019 and in his response to the NOICC, the applicant maintains that he sent his supporting documents through Mr C. In his Statutory Declaration dated 6 September 2017 the applicant writes of Mr C, “He has been the person doing all my visa processing and i do not have any contact with the department of immigration in South Africa. He applied for the electronics visa on 05 December 2016 and it was granted on the 09 December 2016.” However, in his submission of 14 July 2019 the applicant indicates he submitted his Student visa application himself in Johannesburg. The aforementioned inconsistency concerning the applicant’s interaction with the Department in South Africa causes concern for the Tribunal regarding the credibility of the applicant.

5. On balance, the Tribunal does not accept that the applicant is an innocent party regarding the provision of the bogus document to the Department, nor does it accept he was unaware of the material submitted in connection with his Student visa application, for the following reasons. The bogus document contains the applicant’s photograph and its contents, along with the lodged Genuine Temporary Entrant statement, employment reference, and sponsor letter are similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently as identified by the Departmental Subject Matter Expert. The applicant also directly liaised with Mr C, who was found by the investigative reports to have made corrupt payments to Officer A (who granted the applicant’s visa promptly), and he also provided inconsistent accounts regarding his interaction with the Department in South Africa.

6. When the above matters are considered in combination, the Tribunal finds it is implausible, to the point of being fanciful and far-fetched, that the applicant was unaware that dubious material was being submitted to support his Student visa application. Further, the Tribunal is satisfied that the applicant knowingly caused the WAEC West African Senior School Certificate dated December 2012 with Certificate Number 210121 to be given to a Departmental Officer in connection with his Student visa application. That document is a bogus document for reasons previously expressed. Given the aforementioned matters, the Tribunal does not accept that Mr C was operating a false email account in the applicant’s name without his knowledge, nor does it accept that the applicant was unaware of Mr C’s improper conduct. Additionally, the Tribunal reasonably suspects that the applicant’s Student visa was obtained as a result of the fraudulent conduct of Officer A (noting that the element of deceit seeking to gain an unfair advantage, and a causal link between the conduct and visa grant, are present).

7. For the reasons expressed above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

8. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

9. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

10. The applicant’s background has been detailed above. He arrived in Australia as the holder of a Subclass 500 Student visa on 25 December 2016. The applicant’s visa would have expired on 27 September 2018 had it not been cancelled on 12 October 2017. The Tribunal accepts that the applicant completed a General English course and a Certificate IV in New Small Business whilst in Australia (submitting the final administrative requirement for the latter on 16 January 2018, which was completed with effect September 2017). The Tribunal also accepts that the applicant intended to study a Diploma of Leadership and Management prior to his Student visa being cancelled and that he came to this country for the purpose of study. The aforementioned matters weigh against cancellation of the Student visa.

11. However, following the cancellation of his Student visa, the applicant has not sought to resume his studies and the Tribunal is not satisfied that he genuinely intends to study again in Australia in the short term. This is because the applicant did not seek to have Condition 8207 (No Study) lifted from his Bridging Visa E, as reflected in the submitted Departmental decision of 18 January 2018, and there is no contemporary evidence to suggest he has made any contact with an education provider for the purpose of pursuing study. Further, the Tribunal notes that the applicant lodged an application for a Protection visa on 21 November 2017 which, in the context of the present matter, is inconsistent with his objective in this country being to continue his studies. Additionally, the applicant has submitted evidence in support of his claims that he has fathered two children in Australia and has recently married. On balance, following careful consideration, the Tribunal does not accept that the purpose of the applicant’s stay in Australia at the time of this decision is to be a genuine temporary entrant for study, which was the purpose for which his Student visa was originally granted. Accordingly, the Tribunal finds that this factor weighs in favour of cancelling the applicant’s Student visa.

12. The Tribunal has also had regard to the circumstances in which the ground for visa cancellation arose. For reasons previously outlined, the Tribunal reasonably suspects that the applicant’s visa has been obtained as a result of the fraudulent conduct of Officer A which has enlivened the ground of visa cancellation. Further, the Tribunal has found that the applicant knowingly caused a bogus document to be given to a Departmental Officer in connection with his Student visa application. The manner in which the applicant’s Student visa was granted in contravention of established Departmental procedures greatly undermines the integrity of the Australian visa system and the Student visa program in the view of the Tribunal. This is a factor which weighs in favour of cancellation of the applicant’s visa.

13. The Tribunal notes that the applicant maintains he was not involved in any fraudulent conduct in relation to him obtaining the Student visa. For reasons previously expressed, the Tribunal does not accept that the applicant was unaware that dubious material was being submitted to support his Student visa application and it is satisfied that he knowingly caused a bogus document to be submitted in support of that application. Additionally, the Tribunal is satisfied that the applicant was in cahoots with Mr C to improperly obtain the Student visa. Accordingly, the Tribunal does not accept that the ground for visa cancellation arose due to circumstances beyond the applicant’s control.

14. The Tribunal finds that the applicant’s conduct in relation to voluntarily collaborating with Mr C to improperly obtain his Student visa, including knowingly causing a bogus document to be submitted in support of that application, constitutes adverse past behaviour by the applicant towards the Department of Immigration (now entitled the Department of Home Affairs). This matter weighs in favour of cancelling the applicant’s Student visa.

15. The Tribunal accepts there is no evidence before it of adverse present behaviour by the applicant towards the Department of Home Affairs, nor of non-compliance with visa conditions, and these matters weigh against cancellation of his Student visa. There are no other individuals attached to the applicant’s Student visa who would receive a consequential visa cancellation if his own visa were cancelled and there are no circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing as previously outlined. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa.

16. The Tribunal accepts that the applicant will face some hardship if his Student visa is cancelled given he will lose the opportunity to complete any study within Australia in the near future. However, the Tribunal is unconvinced that the applicant has bona fide plans to study in Australia in the short term so the loss of that opportunity, whilst weighing against the cancellation of his Student visa, does so only marginally. The Tribunal accepts that the applicant and his family members will feel some upset at the situation if his visa is cancelled (for completeness, the Tribunal also notes there is no medical evidence before it to indicate any of the applicant’s family members, or the applicant himself, would face psychological harm if the visa is cancelled). The aforementioned matters weigh against cancellation of the applicant’s Student visa.

17. The Tribunal notes that the applicant claims to be the father of two children to Ms D who are now approximately 4 months old. This claim is supported by two Queensland Birth Certificates which record him as the father of the children. There is a dearth of evidence regarding the nature of the relationship between the applicant, Ms D and the two children. The Tribunal notes that the Birth Certificates record different addresses for the applicant and Ms D at the time of the birth of the children. Other than cursory written references made by the applicant in his submissions (including with respect to seeking custody of the children), and a photograph of the two children, there is limited evidence pointing to the parental role performed by the applicant. There is also scant evidence to indicate that the applicant presently supports the two children (or Ms D) financially or emotionally. Given that the applicant recently married Ms E on 2 August 2019, it is apparent that he is not currently in a relationship with Ms D.

18. The Tribunal has developed serious concerns with the credibility of the applicant given his collusion with Mr C, including knowingly causing a bogus document to be given to a Departmental Officer in connection with his Student visa application. Accordingly, the Tribunal is somewhat cautious in assessing the applicant’s claims regarding his involvement with the two children referred to in the submitted Queensland Birth Certificates, particularly given the paucity of evidence as to his paternal role and the lack of corroborating evidence regarding matters of support for the children. However, for the purpose of this review concerning a temporary Student visa, the Tribunal is prepared to accept that the two Queensland Birth Certificates indicate the applicant is the father of the two children. For the sake of completeness, the Tribunal recommends that if the paternity of the children is relevant to a decision concerning a permanent visa application of the applicant then confirmatory scientific testing be undertaken (for example by way of DNA analysis).

19. The Tribunal accepts that the applicant and the two children will face financial and emotional hardship if they are separated as a result of visa cancellation. The Tribunal also accepts that the mother of the two children, Ms D, will face a measure of financial and emotional hardship if the applicant’s visa is cancelled, although there is limited evidence before the Tribunal regarding their current relationship. The aforementioned matters weigh against cancelling the applicant’s Student visa. For completeness, there is no medical evidence before the Tribunal to indicate that the applicant, Ms D or the two children will face psychological harm if the Student visa is cancelled. The Tribunal also accepts that Ms D’s family members might feel some upset if the applicant’s Student visa is cancelled and this weighs against cancellation of the visa.

20. The Tribunal accepts that the applicant recently married Ms E on 2 August 2019. However, there is a dearth of contemporary evidence to indicate the nature of their relationship beyond being legally married at The General Registry Office in Brisbane and them ‘planning to settle down as a family’. It is also worth pausing to reflect that this marriage took place approximately 23 months after the applicant’s Student visa was cancelled and less than 3 months after the birth of the two children to Ms D. Notwithstanding the aforementioned, the Tribunal accepts that the applicant and Ms E will face financial and emotional hardship if they are separated as a result of visa cancellation. These matters weigh against cancelling the applicant’s Student visa. For completeness, there is no medical evidence before the Tribunal to indicate that the applicant or Ms E will face psychological harm if the Student visa is cancelled.

21. The Tribunal notes that the applicant may seek to be sponsored for a Partner visa by Ms E which might be impeded by cancellation of his Student visa (which will be examined in further detail below) and this will cause hardship to them. On balance, the Tribunal considers that the hardship to the applicant and Ms E regarding the aforementioned matter weighs against cancellation of the Student visa. The Tribunal also accepts that Ms E’s family members might feel some upset if the applicant’s Student visa is cancelled and this weighs against cancellation of the visa.

22. The Tribunal accepts that if the applicant’s Student visa is cancelled and he does not hold a valid visa he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia and he would be liable to removal from Australia. Further he would likely face difficulties obtaining a new Australian visa in the future, including by way of facing an exclusion period as a result of a Student visa cancellation. This might impede the processing of an onshore Partner visa application sponsored by Ms E and he may have to lodge an offshore Partner visa application in the future. The Tribunal finds that such matters will result in emotional and financial hardship for the applicant and Ms E. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

23. The Tribunal has also considered whether the applicant has a compelling need to remain in Australia. The expression ‘compelling need’ is not defined for the purposes of considering the exercise of discretion in the present review. The Tribunal notes and pays regard to the ordinary English language meaning of ‘compel’ as recorded in the Macquarie Dictionary (online edition):

    ‘to force or drive, especially to a course of action.’[13]

    [13] Macquarie Dictionary (online edition), accessed 11 September 2019.

24. As there is no persuasive evidence before the Tribunal suggestive of the applicant wishing to resume his studies in Australia, it is not satisfied that a compelling need for him to remain in this country arises from any study related aspirations. Further, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia on account of his prior relationship with Ms D and the two children. This is due to the following reasons. Given that the applicant has recently married Ms E, the Tribunal does not accept that he maintains a partner like relationship with Ms D. Indeed there is a dearth of evidence before the Tribunal regarding the nature of the relationship between the applicant, Ms D and the two children, including the level of any financial support provided. On balance, the Tribunal is not satisfied that the circumstances of the applicant’s relationship with Ms D present a compelling need for him to remain in Australia. Further, the presence of the two children, in the absence of compelling circumstances in the view of the Tribunal, does not create a compelling need for the applicant to remain in Australia when his circumstances are viewed globally.

25. The Tribunal is also not satisfied that the applicant has a compelling need to remain in Australia on account of his relationship with Ms E, whom he recently married a significant period of time following his Student visa being cancelled. It is worth pausing to reflect that their marriage has occurred during the review at a time when the applicant’s visa status remains uncertain and there is a dearth of evidence regarding the particulars of their relationship. Whilst the Tribunal accepts that any onshore Partner visa application of the applicant may be impeded if his Student visa is cancelled, and that he would likely need to rely upon an offshore Partner visa application if he wished to pursue that pathway, it is not satisfied that the circumstances of his relationship with Ms E present a compelling need for him to remain in Australia. Therefore, the Tribunal considers that the absence of a compelling need for the applicant to remain in Australia weighs neither in favour of, nor against, cancellation of his Student visa.

26. The applicant claims to have two Australian citizen children aged approximately 4 months. The Tribunal accepts the limited evidence suggesting that the best interests of these children favours the applicant’s Student visa not being cancelled. The Tribunal accepts that the applicant and the two children will face emotional and financial hardship if the applicant’s Student visa is cancelled. The aforementioned matters weigh against cancellation of the visa. The Tribunal has also carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant and the two children, and which weighs against cancellation of the visa. The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

1. The Tribunal has duly considered the CROC and ICCPR, as outlined above, and is satisfied that no breaches of Australia’s obligations pursuant to the aforementioned international agreements will arise if the applicant’s Student visa is cancelled, having carefully considered those obligations. The aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Student visa.

2. The Tribunal notes that the applicant lodged an application for a protection visa on 21 November 2017. He has submitted only limited detail to the Tribunal in relation to this matter. The Tribunal notes that in his submission dated 14 July 2019, the applicant advised that he applied for that visa as, “…I was scared to go back, being that I have not been back since I left the country on the 27^th August 2011.” He added, “My reasons for not wanting to return back to Nigeria is because I do not have any opportunities to study, there is no working opportunities, and I have no family back in Nigeria so I decided to remain in Australia to be able to study and learn new skills as I see better future opportunities here in Australia.”

3. Given the limited detail before it of the applicant’s claims for protection, the Tribunal is not satisfied of the veracity of such claims. The Tribunal also notes the significant delay in the applicant seeking protection following his arrival in Australia on 25 December 2016 and subsequent Student visa cancellation on 12 October 2017. In any event, the applicant’s claims for protection may be comprehensively considered in the assessment of his protection visa application and Australia’s non-refoulement obligations will not be breached if his Student visa is cancelled. The aforementioned matter weighs neither in favour of, nor against, cancellation of the applicant’s Student visa.

4. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there are any other relevant matters weighing either in favour of, or against, cancellation of his visa.    

   CONCLUSION

5. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s Student visa. The Tribunal has carefully reflected upon the above mentioned factors and it has considered the applicant’s claims individually and cumulatively. Several factors have been found by the Tribunal to weigh against the cancellation of the applicant’s Student visa, as outlined above. The Tribunal is cognisant that ‘the best interests of child’ is a primary consideration, which in the applicant’s case weighs significantly against cancelling his visa, as do the rights of Ms D and the two children to have contact with him. Further, the applicant’s marriage to Ms E weighs moderately against cancelling the Student visa. The hardship faced by the applicant and these individuals also weighs significantly against the cancellation of his Student visa. However, the aforementioned factors must be carefully balanced with those in favour of the visa cancellation.

6. The circumstances in which the ground of visa cancellation arose cause grave concern for the Tribunal. As previously outlined, these circumstances arose in the context of a reasonable suspicion that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer A. Further, the Tribunal is satisfied that the applicant acted in collaboration with Mr C to improperly obtain the Student visa, including by knowingly causing a bogus document to be given to an Officer in support of that application. In the view of the Tribunal, the applicant has engaged in dishonest conduct in order to facilitate his entry into Australia which is a most serious matter.  

7. The Tribunal considers that the conduct identified in the investigative reports greatly undermines the integrity of the Australian visa system and the Student visa program. It strikes at the heart of the Australian Government’s ability to admit non-citizens into the country in an orderly fashion. In the view of the Tribunal, the circumstances in which the ground of visa cancellation arose weigh very strongly in favour of the visa cancellation.

8. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those to the contrary.

9. Considering the circumstances as a whole, the Tribunal concludes that the Student visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    K. Chapman
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extract)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.