Ajiboye (Migration)

[2020] AATA 875

Ajiboye (Migration) [2020] AATA 875 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oladapo Taiwo Ajiboye

CASE NUMBER:  1725496

HOME AFFAIRS REFERENCE(S):          BCC2017/2360013

MEMBER:James Lambie

DATE:16 March 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2020 at 8:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – fraudulent conduct of any person – improper actions by department employees in Pretoria – application processed quickly with no verification of information and documents – disinterested assessor would not have granted visa – discretion to cancel visa – factors for and against cancelation – no evidence of fraud by applicant – compliance with visa conditions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g), 362A

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

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 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 (r.2.43(1)(o)). 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 5 November 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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) and r.2.43(1)(o). 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 29 March 2017. The visa was granted on 31 March 2017 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia as the holder of a Subclass 500 student – vocational education sector visa on 27 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 May and 21 October 2019, the Tribunal sent the applicant (through his representative) copies of documents contained in the Departmental and Tribunal files in response to a request to 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 Officess at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation”, 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 and his representative did not seek to make submissions on the redactions.  Detailed submissions on the cancellation decision were received by the Tribunal on 16 May 2019.

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 of 29 March 2017 was processed and approved by Officer B, the grant being made on 31 March 2017. The applicant’s visa is discussed in detail in a report titled Investigation Report LES Misconduct (“the Officer B report”) as “allegation three” at paragraphs 94 to 104. A further report specifically on the applicant titled Student (subclass 500) visa assessment – schedule 2 discusses his visa application against the assessment criteria that should have been applied by the assessment officer. The assessment officer sought to verify the information in the visa application by various methods. For reasons of confidentiality, referrals to confirm the authenticity of certain documents (financial documents, employment letters, sponsor letters, school certificates) were not possible in the conduct of the assessment. It is noted that the original delegate (Officer B) did not make any such referrals. The assessment officer concluded that the criteria for the grant of the visa were not met by the applicant because, on the basis of the procedures applicable to visa applicants from Nigeria, the original delegate could not have been satisfied that the applicant was a genuine temporary entrant (GTE), that the English language test document was genuine (finding, in fact, that it was not genuine), or that the authenticity of the provided bank statements had been confirmed.

13. In relation to the GTE assessment, the assessment officer considered that enquiries might have been made as to the availability of similar courses in Nigeria, that there was insufficient evidence as to the applicant’s employment, that the authenticity of his education documents could not be confirmed or that any attempt was made to verify them and that no proper inquiry had been made as to his immigration history.

14. In submissions and at the hearing, the applicant sought to challenge those findings and to invite positive findings that he did at the relevant time, or at least by the time of the hearing, meet the relevant criteria. While I have serious doubts as to whether that is the correct approach, I accepted his 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 GTE and other required criteria.

15. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. The applicant’s first 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. On the question as to whether the applicant meets the GTE criteria, various documents were submitted for the purposes of showing that had the requisite inquiries been made, a disinterested visa processing officer would have been satisfied that the following criteria were met.

    Availability of courses in country of residence. 

17. The assessment officer noted:  “Similar courses are available in Nigeria.  The visa holder has, however, provided a convincing GTE statement to support his decision to study in Australia.  My only concern is that the applicant holds a Bachelor’s degree but is choosing to study at the lower level of a Diploma.”  

18. The applicant’s expressed passion for a career as a “professional supervisor engineer” in his GTE statement was abandoned before commencement of the course, in preference for a qualification in aged care services.  It is, of course, open to holders of student visas to change their enrolment but a change from management (which would be applicable to the applicant’s tertiary qualifications) to aged care (which would not) seems dramatic and puts the sincerity of his GTE statement in question.  Nevertheless, for the purposes of this application I have given the applicant the benefit of the assessment officer’s observation.

    Employment:  Bella Auto Services Mechanical Workshop

19. The assessment officer noted:  “The applicant claims that Bella Auto Services Mechanical Workshop will employ him on completion of his studies but there is no evidence to support that (no employment letter).  The business does not appear to have a web presence.  Without evidence to demonstrate that the applicant has a job to which to return, I am not satisfied that the applicant would be sufficiently motivated to return to Nigeria to work following completion of his studies.”

20. The applicant acknowledges that Bella Auto Services does not have its own website but submitted an extract from a website (finelib.com) which he described as an equivalent of the Yellow Pages.  This indicates the existence of the business with the same telephone number given by the applicant on his visa application, albeit at a different address. The applicant also submitted a letter from a Mr Mojisola Poroye who describes himself as the general manager of Bella Auto Services. I note that the letter uses the different address in its letterhead but also what appears to be an incorrect telephone number (elsewhere the number has a 888 while the letterhead renders it with a 88). The letterhead also gives its name as “Bella Auto Service Limited”, while everywhere else it uses “Services”.  While this might merely reflect a lack of care in the composition of the letterhead, the non-matching addresses and telephone numbers would at least place a disinterested processing officer on enquiry. I further note that this letter is not the employment letter required for the purposes of assessing GTE, but a character reference. I therefore consider the assessment officer’s opinion to be justified.

21. The applicant also submitted a letter from the Director of Administration and General Services of Ogo-Oluwa Local Government advising that it intended to employ the applicant as a community development officer. While this may be an indicator of GTE, I can give it only limited weight in view of the comments at paragraph 18 above. I also note that it was apparently sought only after I noted the lack of an employment letter at the hearing.

    Education

22. The assessment officer noted:  “The applicant provided a copy of a NECO certificate. The applicant provided a copy of a Bachelor of Technology (Hon.) in mechanical engineering from the Ladoka Akintola University of Technology.  Authenticity of the certificates cannot be confirmed. There is no evidence that the original delegate verified the information.”

23. Following the hearing, I was able to verify the university certificate by means of the certification code on the document.  The applicant provided a NECO results checker but no screenshot of the result. I was unable to verify his senior school certificate. I am not in a position to question the finding that there was no evidence that the original delegate verified the information, but I give some weight in the applicant’s favour to the verification of his university degree.

    Immigration history

24. The assessment officer noted:  “The applicant stated that he was refused a Canadian visa on the 13/09/2016. He stated he was “refused for no tangible reason…” There was no FCC match for fingerprints so I am unable to verify this claim.”

25. The applicant’s submission in this respect was that he had disclosed the Canadian visa refusal voluntarily. However, this would have necessarily placed a disinterested visa processing officer on inquiry. The applicant did not produce any correspondence in relation to the Canadian visa refusal and therefore it is impossible to verify that he was refused for “no tangible reason”. I am unable to test the assessment officer’s comment that there was no FCC match for fingerprints but have no reason to doubt it. In the circumstances, I consider the assessment officer’s opinion to be justified.

26. On the GTE issue overall, therefore, while I have accepted (with reservations) the applicant’s submissions on availability of courses in country of residence and education, I consider the assessment officer’s opinion to have been justified in respect of employment and immigration history. In these circumstances I cannot be satisfied that, had Officer B processed the visa application in a proper manner that the GTE requirements would have been assessed as met. In fact, I cannot be satisfied that they were met at the time of the hearing.

27. The assessment officer pointed to two other concerns with respect to the visa application.

    English language proficiency

28. The assessment officer noted: “English language test document is not genuine – confirmed by Pearson website. Therefore I am not satisfied that the applicant meets the English language proficiency requirements.” Further, under the heading PIC 4020: bogus documents, she notes: “English language test document is not genuine – confirmed by Pearson website.” 

29. The applicant maintains that the PTE test results were genuine, but accepts that this cannot now be verified because the records are deleted after two years. He also submitted a letter dated 14 November 2019 from a Mr Okeke Cletus of Swintec Computer Institute in Owerri, Nigeria. This letter was obviously obtained after the hearing and was intended, in some part, to assuage my concern that the applicant’s email address on his PTE test score report did not match the email address he had given on his visa application and, in fact, used consistently while in Australia. The applicant’s evidence in that respect was that a new Gmail account was allocated to him by the testing centre but no convincing reason could be ventured as to why that might be necessary. The letter from Mr Cletus is no more enlightening: “we have registered a lot of students in which [the applicant] is one of them and we do take their personal details and register their test using different email addresses to enable us to monitor the registration process”. Given that the Pearson PTE testing system allocates a unique test taker ID, registration ID and test centre ID, the invention of a new email account is inexplicable and, on the evidence, unexplained. Further, the letter has a very dubious appearance and does not note its Pearson Test Centre ID number.

30. Because the Swintec letter was provided to the Tribunal post-hearing, I have not put to the applicant my concerns about its authenticity. Therefore, I make no finding in respect of it other than to reject its evidentiary value.

31. With his submissions, the applicant included an IELTS test report form dated 2 March 2019 giving an overall band score of 6.5, which exceeds the minimum band score of 5.5. However, this does not address the issue of the allegedly non-genuine PTE test document with the visa application.

32. Having reviewed the evidence available to the Tribunal, I am prepared to give the benefit of the doubt to the applicant on this issue, principally because I have not had access to the material underlying the assessment officer’s conclusion.

    Funds/financial capacity

33. The assessment officer noted: “the authenticity of the bank statements cannot be confirmed. There is no evidence that the original delegate verified the information.”

34. There was no material submitted to contradict the finding that the authenticity of the bank statements included with the visa application had not been confirmed or that the original delegate had taken any steps to verify the information. In particular, I note that statements for the account held by the applicant’s uncle for the three months to 21 March 2017 held at most NGN 367,045 (about AUD$1470) and usually very much less than that, until 16 March 2017, when NGN 7.5 million (about AUD$30,000) was deposited, immediately withdrawn in cash and then NGN 7.1 million (about AUD$28,000) redeposited as the last entry on the statement.  The applicant had attested to approximately AUD$60,000 in financial support from his uncle. It is difficult to see how a disinterested visa processing officer could have been satisfied with these bank statements without making further inquiries.

35. The applicant sought to rely upon Western Union transfers in the sum of $908 each and to tender post-hearing these bank statements showing that he was in regular receipt of funds from a source he identified as “family transfer”. That he is in fact in receipt of family support and has been paying his tuition fees is relevant to the discretionary factors discussed below. However, for the purposes of considering whether the visa had been obtained as the result of the fraudulent conduct of another person, that conclusion would tend to be supported by the apparent non-verification of the bank statement submitted with the visa application.

36. 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)’

37. 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]

1. 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]

2. It was submitted on behalf of the applicant that:

   a)there is no evidence that the applicant knew of the fraud and that he was never interviewed about any of the matters raised in the report;

   b)to have 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. The applicant provided all the vital documents that were required at that time and his current results act as a proof of his ability as a genuine student;

   c)it is clear from the documents submitted by the applicant that he met the visa criteria. No verifications were done of the records. Without evidence the Department was wrong in cancelling the visa;

   d)while circumstances surrounding the grant of the applicant’s student visa are suspicious, there must be some evidence on which to base a suspicion of the necessary causal link mere surmise or conjecture simply because of the other cases is not sufficient to establish a reasonable suspicion;

   e)it is grossly unfair on the part of the Department to use the applicant as a scapegoat for their failures when no proof of fraud on the part of the visa applicant has been provided

3. I will attempt to address these submissions in turn.

4. It is not to the point, but may be relevant to the discretionary factors, that the applicant did not know of the fraud committed at post in Pretoria.  It is sufficiently clear in the wording of the regulation and the Procedures Advice Manual that a visa may be cancelled if it is reasonably suspected it was obtained as a result of the fraudulent conduct of any person, including a Departmental employee.

5. It is accepted that, to have a reasonable suspicion that the applicant’s visa was granted as a result of the fraudulent conduct there would need to be some evidence the visa would not have been granted but for the fraud. Contrary to the applicant’s submission, there is clear evidence that the applicant did not provide all the vital documents that were required at the time: he did not provide an employment letter. Further, as has been discussed above, the nature of the information and documents provided by the applicant in his visa application should have put the processing officer on enquiry. In the circumstances, it seems to me abundantly clear that the visa, if properly processed, could not have been granted on the basis of the documents and information supplied by the applicant. To the extent that the applicant’s current results might act as some proof of his ability as a genuine student, this does not pertain in any way to the grant of the visa on the basis of unsatisfactory information and documents, but it is a matter I will take into account when considering the discretionary factors.

6. It therefore cannot be accepted that the documents submitted by the applicant make it clear that he met the visa criteria.

7. When I take into account the fact that the visa was granted within the space of two days after application and with the manifest inadequacies as to information and documents discussed above, and when the visa has been processed by a person whose participation in the fraudulent behaviour at post has been acknowledged, it is open to me to find (and I do find) that there are grounds for 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’s visa application and not to the other cases in this cohort.

8. As to the final paragraph of the applicant’s submissions, I would repeat my comments at paragraph 42. No issue of scapegoating arises on the facts.

9. 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

10. 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’.

11. The applicant gave oral evidence as to the hardship he might suffer if the visa were to be cancelled. I also received and have given careful consideration to the detailed written submissions of his representative.

12. I have considered the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. He arrived in Australia on 27 April 2017 as the holder of a Subclass TU 500 vocational education visa. He produced a letter from Lifetime International Training College dated 2 October 2019 to the effect that he had completed his certificate three in Individual Support on 30 October 2018 and is currently enrolled in the Diploma of Community Services. I give these matters some weight in his favour.

13. I have considered the extent of his compliance with his visa conditions. The evidence is that he has complied and I am not aware of any breaches. As mentioned in paragraphs 36 and 43, he has paid his tuition, maintained his enrolment and achieved satisfactory results. I give this matter some weight in his favour.

14. I have considered the degree of hardship that may be caused to the applicant and any family members. The applicant gave evidence that, were his visa to be cancelled, it would cause hardship to him, his wife and his extended family. He claims that his engineering degree was only granted with third class honours, which is insufficient to advance his career. He says that much of the money expended on undertaking his travel in Australia would have been wasted and there would be negative outcomes for his own mental health and that of his family.   I was given no independent evidence of this, but have given it some weight in his favour.

15. 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 significant deficiencies in the visa application, some of these being still unresolved:  for example, the employment letter from Bella Automotive, the bank statements, the circumstances surrounding the Canadian visa application and the true status of the PTE test, all of which should have been pursued and instead of which the visa was granted within two days of lodgement. I am satisfied that, but for the fraudulent conduct, the visa would not have been granted on the basis of the information in the application or even on the basis of the material provided to the Tribunal. I give some weight in favour of the applicant that the fraudulent conduct is not alleged to have been undertaken by him, balanced against the circumstances described above.

16. There is no indication of any adverse behaviour towards the Department. This is given a degree of weight in the applicant’s favour.

17. There are no dependent visa holders who face any consequential cancellations should the applicant’s visa be cancelled.

18. 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. He may be eligible for a temporary bridging visa should there be further matters that need to be resolved. If the visa would be cancelled, he would be subject to section 48 of the act which may limit his options to apply for further visas in Australia. He may also be affected by public interest criterion 4013 limiting the granting 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 favour of the applicant.

19. 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-refoulement obligation arises. I therefore attach no weight to this factor.

20. Taking all of these factors into account, I give the most significant weight to my finding that the visa was granted as a result of the fraudulent conduct of the Departmental employee. In the applicant’s favour, I give the most significant weight to the applicant’s compliance with his visa conditions and the evidence (albeit limited) of the hardship that might arise from cancellation.

21. The fact that a visa may have 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 the matter before me, as noted throughout this decision, there remain significant gaps in the material required of the applicant in order for the visa properly to be granted. The integrity of the system cannot be said to be secured merely by a demonstration of substantial compliance once the applicant is onshore. This is particularly the case where the applicant remains onshore and the material needed to assess the genuine temporary entrant component remains unmet.

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

    DECISION

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

    James Lambie
    Senior Member