Akom (Migration) - [2019] AATA 3540

Akom (Migration) [2019] AATA 3540 (12 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Emeke Emmanuel Akom
CASE NUMBER:  1725276
HOME AFFAIRS REFERENCE(S):           BCC2017/2360024
MEMBER:K. Chapman
DATE:12 July 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 July 2019 at 1:36pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – validity of section 376 certificate – application of APP 6 – redactions of material – identities of third parties – ground for cancellation – ‘reasonable suspicion’ that a visa has been obtained as a result of ‘fraudulent conduct’ – high risk application based on Nigerian nationality – locally engaged Departmental staff in Pretoria – lacked formal authority to process application – failure to apply appropriate visa assessment processes and scrutiny – deficiencies in application – consideration of discretion – genuine student – integrity of Australia’s student visa program – knowledge or involvement in the fraudulent conduct – degree of hardship – relationship with Australian citizen de facto partner – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Odinkaeze (Migration) [2018] AATA 1295
Patel v Minister for Immigration and Border Protection [2016] FCA 165
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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’). The applicant, Mr Emeke Emmanuel Akom, is a Nigerian national.
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.
The visa cancellation decision record of 11 October 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:
a.on 4 April 2017, the applicant made an electronic application for a Subclass 500 Student visa;
b.on 12 April 2017, the applicant was granted a Subclass 500 Student visa by a locally engaged Departmental employee in Pretoria, South Africa;
c.on 21 April 2017, 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 8 September 2017, the applicant responded in writing to the NOICC denying he was involved in any wrongdoing and submitting material in support of his contention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 3540
Decision Date: 12 July 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of their Subclass 500 (Student) visa. The applicant’s visa was cancelled under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(o) of the *Migration Regulations 1994* (Cth), on the basis that the delegate reasonably suspected the visa had been obtained as a result of fraudulent conduct. The applicant contended that they had no knowledge of or involvement in any fraudulent conduct, that they met the visa criteria, and that discretionary factors, including significant hardship, should lead to the visa not being cancelled.

The Tribunal was required to determine whether the ground for cancellation was established and, if so, whether the discretion to cancel the visa should be exercised. The applicant argued that their visa application was handled improperly by a Departmental employee, and that they paid a sum of money to a relative for assistance with the application, without their knowledge of any wrongdoing. The applicant submitted various documents to support their claims, including confirmations of enrolment, financial records, and statements.

In its reasoning, the Tribunal affirmed that the Notice of Intention to Consider Cancellation was correctly framed. It found that the ground for cancellation, namely a reasonable suspicion that the visa was obtained as a result of fraudulent conduct by a Departmental employee, was established. The Tribunal then considered whether to exercise its discretion to cancel the visa, having regard to the applicant's submissions, including their completion of studies and intention to continue studying, which weighed against cancellation. However, the Tribunal also gave significant weight to the fact that the visa was granted in contravention of established Departmental procedures, which undermined the integrity of the Australian student visa program, weighing in favour of cancellation.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's Subclass 500 (Student) visa should be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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? 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 8 September 2017, contended he had no knowledge or involvement in any inappropriate conduct, is eligible for the grant of the visa regardless of any activities of the Departmental employee, is in Australia meeting his obligations as a student, the ground of cancellation is not established and in any event discretionary factors such as hardship to him and the circumstances being outside of his control should see his visa not be cancelled. Supporting material such as confirmations of enrolment (COE), financial records of his brother (the financial sponsor), a statement from his brother, confirmation of health insurance, a Statutory Declaration, identity documents and educational records were also submitted by the applicant. In summary, the applicant claimed in his response to the NOICC that he had no knowledge of any wrongdoing, satisfies the criteria for the visa and would face terrible hardship if his visa was cancelled for events outside of his control (noting also that his mother had recently passed away, apparently due to the stress of these events). 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. In relation to his review application, the applicant expanded upon the contentions outlined above. In written material, the applicant advanced the position that his brother suggested he contact his ‘distant cousin’ Mr Peterson Okechukwu Nwabuokei (‘Petersen’) in Australia for assistance with a Student visa application. It is further contended that Petersen liaised with Mr C (who is referred to in the investigative reports, including with respect to making corrupt payments to Officer A) and they acted improperly to submit the Student visa application, including by way of establishing an online application account and email address without his knowledge. The applicant maintained that he relied upon his distant family member Petersen, paid $7,500 for his assistance and never saw the visa application or communicated with the Department or Mr C.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the Student visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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 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’. 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]. The applicant’s background has been detailed above. He arrived in Australia as the holder of a Subclass 500 Student visa on 21 April 2017. The applicant’s visa would have been due to expire on 22 September 2020 had it not been cancelled on 11 October 2017. The Tribunal accepts that whilst in Australia the applicant has completed a Certificate III in Individual Support and a Diploma in Business, with some time absent from study due to his visa cancellation and in awaiting the outcome of his application for review. The Tribunal also accepts that he intends to commence study of an Advanced Diploma of Business if his Student visa is reinstated, notwithstanding that he has lodged an onshore Partner visa application sponsored by Ms Ozies. The Tribunal has paid due regard to the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, the confirmation of financial sponsorship from his brother, financial records, possession of health insurance, documents demonstrating his educational attainment and employment records) and affords some weight to it. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia for study remains extant given the aforementioned matters, albeit that he has completed the majority of his planned studies. Accordingly, the Tribunal finds that this factor weighs against cancelling the applicant’s visa. 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 B which has enlivened the ground of visa cancellation. 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.