Aghedo (Migration)

[2020] AATA 1358

Aghedo (Migration) [2020] AATA 1358 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Patience Nuella Aghedo

CASE NUMBER:  1725377

HOME AFFAIRS REFERENCE(S):          BCC2017/2968611

MEMBER:James Lambie

DATE:15 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 15 April 2020 at 5:18pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – fraudulent conduct by any person – local department employees in Pretoria may have bypassed procedures – visa application processed in short time with no steps to verify information – inconsistencies in documentation of education and employment – reasonable suspicion of fraud – discretion to cancel visa – satisfactory study in Australia – marriage to permanent resident and birth of child – application for partner visa – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(o)

CASES

Guo v Commonwealth of Australia [2017] FCA 1355

Patel v Minister for Immigration and Border Protection [2016] FCA 165

Rani v Minister for Immigration and Border Protection [2015] FCCA 445

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applies to the applicant, namely, that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. 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. The applicant appeared before the Tribunal on 12 November 2019 to give evidence and present arguments.

4. The applicant was assisted at the hearing by her husband, Dr Sunday Ofili, who is an Australian permanent resident.  She was assisted with the provision of written submissions by her former representative who is a registered migration agent.

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

   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). 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?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(o) is relevant.

8. The applicant lodged a Subclass 500 visa application electronically on 20 March 2017. The visa was granted on 23 March 2017 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia on 23 April 2017.

9. The Department conducted an investigation into the circumstances leading to the grant of a tranche of Subclass 500 student visas at the post in Pretoria. The investigation determined that departmental employees may have acted improperly to grant these visas: the visa granted to the applicant was among those identified as improperly granted.

10. On 3 June 2019, the Tribunal sent the applicant (through her representative) copies of documents contained in the departmental and Tribunal files in response to a request for written material made under section 362A of the Act, inviting the applicant to comment. Included in this material was a copy of a report entitled “Fraud by Locally Engaged visa Processing Officers at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation” (‘the Cancellation report’), together with a number of annexures.  Because these documents refer to a number of separate visa applicants, Departmental staff and law enforcement methodology, they are heavily redacted under ss 375A and 376.  The applicant’s representative did not seek to challenge the redactions.  In any event, I am satisfied that the redactions made in the documents provided to the applicant are necessary for the protection of the privacy of other individuals and for the purposes of law enforcement.  I have also found no reason to seek recourse to any unredacted documents and am satisfied that the redacted details are neither of any potential assistance to the applicant nor relevant to the determination of the application.

11. The report and the other documents it references describe a Departmental investigation into the conduct of locally engaged staff in Pretoria arising from suspicions that some Nigerian student visa holders had been engaging in criminal activity after arriving in Australia. The investigation determined that two locally engaged staff had bypassed Departmental procedures in granting student visas to a cohort of Nigerian applicants. One of the staff (“Officer A”) had corruptly received payments from a person in Australia (“Mr C”, himself a Nigerian student visa holder). The other staff member (“Officer B”) had been allocated a number of Nigerian student visa applications to process by Officer A and had done so without the scrutiny required by Departmental procedures. Officer A and B were both found to have acted improperly and in breach of their conditions of employment.

12. The applicant’s visa application was processed and approved by Officer B.  The report refers to an allegation that the visa was granted in circumstances where the visa assessment procedures were knowingly disregarded.  Officer B made the grant without the visa application being allocated to her, in circumstances where she was not authorised to process such cases and where she failed to apply the mandatory guidelines for visa assessment, including rigorous assessment for cases flagged “high risk”.   The applicant’s visa application was processed and approved by Officer B within three working days of its receipt.

13. The Officer B report notes that Officers A and B acted to bypass the mandatory allocation of visa application cases via the departmental system so that Officer B could grant visas to Nigerian national clients who would otherwise have faced rigorous assessment through departmental risk profiling. The report notes that, within the duties designated to officer B, she would not have been assigned these cases and the cases were all approved within a time span of 2 to 13 days after lodgement. In Appendix 1 to the report, the applicant is named in the list of clients granted visas in this way by Officer B. Departmental systems record that Officer B did not attempt to check the veracity of either the employment or the past education claims made by the applicant, contrary to mandatory procedural requirements.

14. At the hearing, the applicant sought to challenge those findings and to invite positive findings that she did, at the relevant time, meet the relevant criteria. While I have doubts as to whether that is the correct approach, I accepted her submissions and documents into evidence. I would, however, observe that it appears quite clear from the Departmental material that the original delegate could not have and did not conduct any proper assessment of the visa application. The application was processed in a very short time and there were no steps taken to verify vital aspects against the required criteria.

15. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. Her submission was that it cannot be established that the applicant was personally involved in the commission of any fraud. It is, of course, understood by the applicant that the ground for cancellation is the fraud “of any person” but I accept that it is appropriate in a case where the fraud is alleged to have been committed by another without the knowledge of the applicant to consider the circumstances more closely than where the fraud is that of the applicant. In particular, it is relevant to consider whether, absent the fraud, the visa would have been granted in any event.

16. An examination of the visa application and the documents attached to it indicate that, as claimed in paragraph 13, there are questions that arise in relation to the applicant’s past education claims and the details of her employment in Nigeria.

17. In place of a birth certificate, Ms Aghedo provided a statutory declaration from her father dated 27 November 2006.  It is titled “Statutory declaration of age” and attests that she was born on 10 May 1987 in Ibadan but that, he not being aware of any birth registry in Ibadan, recorded the birth in a family birth register for future reference.  I asked the applicant why this affidavit had been sworn in 2006. She told me that she needed it for proof of age in order to be admitted to high school. In view of the facts in the following two paragraphs, this cannot possibly be correct. When I put this to the applicant, she offered no further explanation.

18. Ms Aghedo included with her visa application a senior school certificate issued by Nigeria’s National Examinations Council (NECO), undertaken at Methodist Grammar School, Ibadan, in November 2005 in the name of Agbedo Patience, a misspelling of her family name. Purportedly to correct this, she attached a copy of an affidavit sworn by her in February 2011 declaring that NECO had misprinted her name. It is not at all clear why this might be an acceptable means of correction of such an important mistake and why simply requesting the examining authority to reissue the certificate might not have been both feasible and legally unquestionable. 

19. Further, Ms Aghedo’s visa application gives her highest level of schooling as the West African Examinations Council (WAEC), undertaken at Illeh Secondary School, Okpoma.  Attached instead was a NECO secondary school certificate that school for November 2004 (her name being correctly spelled on this document).  

20. These are curious enough matters to have put any visa processing officer on enquiry.  It is clear from the department file that no attempts to verify or reconcile these matters were made.

21. In her Visa application, the applicant named as her employer Fixline Limited, a company she described as providing financial and insurance services, and having its address at “No 4, Thomas Laniyan Street, Idi-Oroko, Anthony, Lagos.” This is a misspelling:  the street name is in fact “Thomas Olaniyan”.  The mistake is not replicated in the applicant’s handwritten letter of resignation.  On the letter of reference submitted by the applicant, the company describes itself as in the business of marketing and logistics management and, very strangely, provides the identical misspelling of its address. I would also observe that the letterhead, whether for a company in finance and insurance or marketing and logistics management, appears very crudely constructed. There is no web presence listed, and none that I have been able to locate.   Further, the letter itself contains numerous illogical line breaks and a change in font. It does not appear to be a genuine document, although the applicant maintains that it is.  I make no finding in respect of that, other than to come to the view that the anomalies I have mentioned would, at the very least, place a properly instructed visa processing officer on enquiry. 

22. Further, the bank statements she provided for the period 5 October 2016 to 21 March 2017 provide very limited support to her claims as to her employment history.  Only 5 entries, between 23 December 2016 and February 2017 show that she was in receipt of payments from Fixline Limited.  Following the hearing, she made a supplementary submission that she neglected to say that she “had periods when [she] was paid in open cheque.”  Other than the five payments I have identified, I cannot identify which, if any, other credits might represent payments by “open cheque”.  It is not possible, on the evidence, to be satisfied that she was in receipt of any regular salary from her nominated employer.

23. Even following the evidence she gave at hearing and the supplementary material she later provided, I cannot be satisfied as to her employment history.  On the basis of the material supplied with the visa application, I cannot see how any departmental officer could be satisfied to any degree.

    A reasonable suspicion that the visa was obtained as a result of the identified fraud

24. Having regard to all of the material above I have carefully considered whether the prescribed ground for visa cancellation exists. Departmental policy as to the scope of fraudulent conduct provides:

    ’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, all 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[1]

    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] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’

25. When assessing the ground for cancellation, the term ‘reasonably suspects’ requires a causal link to be drawn between the obtaining of the visa and the fraudulent conduct of any person. 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.[2]

    [2] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22]

26. Guidance is available as to how a decision-maker ‘reasonably suspects’ the fraudulent conduct. It is not necessary for the decision-maker to be satisfied that the visa was obtained by fraud – a reasonable suspicion is sufficient[3]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture[4]. The factual foundation required to ground a reasonable suspicion is less than that required for a belief[5]. 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[6]. The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend[7]. It does not require the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities[8]. 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[9]. 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[10].

    [3] Ibid

    [4] Sun v Minister for Immigration and Border Protection [2016] FCAFC at [86], citing George v Rockett (1990) 170 CLR 104, 115-116

    [5] Ibid at [48]

    [6] Ibid

    [7] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18]

    [8] Ibid

    [9] Guo v Commonwealth of Australia [2017] FCA 1355 at [44]; Patel v Minister for Immigration and Border Protection, supra, at [23]

    [10] Guo v Commonwealth of Australia, supra, at [35]

27. It was submitted on behalf of the applicant that, while accepting that a departmental employee may have been fraudulent, it could not be accepted that her visa was obtained as a result of any fraud.

28. On the basis of the material available to me, I am satisfied that the facts and matters described in paragraph 12 and 13, which have been subject to a rigorous departmental investigation, apply to the processing of the applicant’s visa. I am further satisfied that those matters constitute the fraudulent conduct of another person.

29. In order to form a reasonable suspicion that the applicant’s visa was granted as a result of the fraudulent conduct, there would need to be some evidence that the visa would not have been granted but for the fraud. As outlined in paragraphs 16 to 23 above, it appears clear to me that the visa, if properly processed, would not have been granted.

30. When I take into account the fact that the visa was granted within the space of three working days from application with the inadequacies discussed above, and when that visa has been processed as described in paragraph 12, I am satisfied that there is a reasonable suspicion that the applicant’s visa was obtained by the fraudulent conduct of Officer B. In making this finding, I have had regard only to the circumstances of the applicant visa application and not to the other cases in this cohort.

31. For these reasons, 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 visa should be cancelled.

    Consideration of discretion

32. 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’.

33. The applicant gave oral evidence and tended written submissions as to the hardship she might suffer if the visa were to be cancelled. I have also given careful consideration to the detailed written submissions of her former representatives, both to the Tribunal and to the delegate.

34. I have considered the purpose of the applicant’s travel and stay in Australia and whether she has a compelling need to travel to or remain in Australia. She arrived in Australia on 23 April 2017 is the holder of a Subclass TU 500 visa. She produced documents from the Lifetime International Training College dated 13 December 2018 to the effect that she had completed a certificate three in individual support and that she is currently enrolled with TAFE Queensland for a diploma of nursing. I give these matters some weight in her favour.

35. I have considered the extent of her compliance with her visa conditions. The evidence is that she has complied with her visa conditions. She has paid her tuition, maintained her enrolment and achieved satisfactory results. I give this matter some weight in her favour.

36. I have considered the degree of hardship that may be caused to the applicant and any family members. She gave evidence that she left her full-time sales representative position in Nigeria which she had held for some nine years. She claims that she has spent significant amounts of money to obtain a further qualification in Australia and that the sacrifice of her opportunities in Nigeria and the waste of money would be a significant setback in her life. For the reasons given above, I am not entirely convinced as to the career she claims to have left behind her in Nigeria. I also note that she has achieved qualifications in Australia, perhaps beyond those she claimed to have been seeking in her statement of purpose.

1. Although it is stated nowhere in her written submissions, the applicant married Mr Ofili (an Australian permanent resident) in October 2018 and the couple have a daughter, born October 2019. Obviously, if the visa were to be cancelled and the applicant to return to Nigeria there would be implications for the child, who would be separated from either her mother or her father. However, to the knowledge of both the applicant and Mr Ofili, the applicant was in Australia on a temporary visa and the prospect and consequences of the expiry of that visa must have been clear to both of them. The applicant gave evidence that the parties have applied for a partner visa: what weight I might apply to the prospect of the parties being separated is one that no doubt will be more fully explored in that forum.

2. The ground for cancellation of the visa arose in circumstances where it appears clear from the evidence that a departmental employee engaged in fraudulent conduct to grant the visa. There were, however, clear deficiencies and serious questions arising from the information and documents provided by the applicant with the visa application. The applicant attaches a very heavy emphasis on the fact of the departmental employees’ wrongdoing and claims that the grounds for cancellation arose from circumstances beyond her control. I consider that I must give some weight to the fact that the fraudulent conduct underlying the cancellation ground is not that of the applicant. However the weight that I apply to consideration is tempered by the fact that, on the basis of the documents and information provided by the applicant, her assessment as a genuine temporary entrant could not be verified at the time of the visa grant and it is a matter of which I am still not satisfied. Further, the applicant has been the beneficiary of the fraudulent decision and has achieved what she sought to achieve in Australia without necessarily satisfying the eligibility criteria to do so.

3. There is no indication of any adverse behaviour towards the department and this is given a degree of weight in her favour.

4. There are no dependent visa holders who would face any consequential cancellations should the applicant Visa be cancelled.

5. Should the visa be cancelled, the applicant will become an unlawful noncitizen and become liable for detention under section 189, and removal under section 198, of the Migration Act. She may be liable for a temporary bridging visa should there be further matters that need to be resolved. If the visa were to be cancelled, she would be subject to section 48 of the Act which may limit her options to apply for further visas in Australia. She may also be affected by Public Interest Criterion 4013 limiting the grant of a further temporary visa for a specified period. All of these legal consequences I have taken into account and given some weight to in her favour.

6. There was no submission advanced to the effect that any of Australia’s international obligations might be invoked in respect of this application and there is no suggestion that a non-reform and obligation arises. I therefore attach no weight to this fact.

7. Taking all of these factors into account, I give the most significant weight to my finding that the visa was granted as the result of the fraudulent conduct of a departmental employee. In the applicant’s favour, I give the most significant weight to the matters discussed in paragraphs 37 and 38.

8. The fact that a visa has been granted as a result of fraudulent conduct, whether of the applicant or another person is a serious matter going to the integrity of the immigration system. In this matter, as noted throughout this decision, there remain significant information and credibility gaps in the material provided by the applicant and therefore questions as to whether she ever qualified as a genuine temporary entrant. The integrity of the system cannot be said to be secured merely by achieving the outcomes for which the visa was granted or by demonstrating elements of eligibility once the applicant is onshore. This is particularly the case where the applicant remains onshore and material needed to assess the genuine temporary entrant component remains unmet.

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

   DECISION

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

    James Lambie
    Senior Member