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

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’). The applicant, Mr Emeke Emmanuel Akom, 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. 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 that he satisfies the criteria for the Student visa (the Tribunal has duly considered the aforementioned material); and

   g.on 11 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa.  

4. On 17 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. He subsequently provided a copy of that visa cancellation decision to the Tribunal. On 1 December 2017 and 18 January 2019, the Tribunal Registry sent copies of tranches of documents contained in the Departmental and Tribunal files in response to a request for access to written material 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. 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).

5. 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. Officer 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.

6. The applicant lodged his Student visa application on 4 April 2017 and the visa was granted by Officer B on 12 April 2017. 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 165-180 of Departmental file BCC2017/2360024, which was raised with the applicant pursuant to s.359AA 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.

7. The applicant was one such individual subject to audit (see the document ‘Student (subclass 500) visa assessment – schedule 2’ at folios 160-164 of Departmental file BCC2017/2360024, which was raised with the applicant pursuant to s.359AA 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 B (see ‘Allegation Eight’ at folio 42 of the Tribunal file).

8. 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 BCC2017/2360024, 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. As previously outlined, the tranches of documents furnished to the applicant, in response to a request for access to written material pursuant to s.362A of the Act, contained some redactions made on account of the non-disclosure certificates and the application of APP 6. The presence of the non-disclosure certificates and associated redaction of material was canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below.

9. On 18 January 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment on or respond to the following information:

   -According to the Referral to the General Cancellations Network Cancellation Consideration document (f.15-17 of Departmental file BCC2017/2360024) your visa application was processed and approved by a Departmental officer in circumstances where:

   -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.18-79 of Department file BCC2017/2360024 f.38-68 of Tribunal file 1725276), the visa would not have been granted.

10. In response to the s.359A invitation on 3, 24 and 25 February 2019, the Tribunal received documents including but not limited to written submissions, financial records, statements (including Statutory Declarations), portions of Departmental investigation documents, English language test results, confirmations of enrolment (COE), identity documents, education agent information, and an ‘email trail’ with various purported communications. Further material was received on 1 April 2019 concerning the health of the applicant’s partner. All submitted material has been duly considered by the Tribunal.

11. On 18 June 2019, the Tribunal Registry sent to the applicant a copy of the Departmental file BCC2017/1264980 pertaining to his Student visa application. Copies of the s.375A certificate dated 21 November 2017, the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018 were also sent to the applicant. Some of the aforementioned material was redacted in accordance with APP 6. The applicant was also invited to comment upon the validity of the enclosed non-disclosure certificates if he wished to do so (noting that the presence of the non-disclosure certificates and associated redaction of material was also canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below).

12. On 20 June 2019, the applicant submitted further written submissions and evidence to the Tribunal. In summary, the contention was made that third parties were acting in relation to the applicant’s Student visa application without the applicant having knowledge of any dubious conduct on their part. Material such as email correspondence, education agent information, documents submitted in relation to the Student visa application and financial information accompanied the aforementioned submission in support of the applicant’s claims. On 21 June 2019, further information was submitted to the Tribunal in relation to the health of the applicant’s partner. All submitted material has been duly considered by the Tribunal.

13. The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments. He gave his evidence using the English language. The applicant was represented in relation to the review by his registered migration agent (‘the representative’). The Tribunal also received oral evidence from the applicant’s partner, Ms Ozies. Further documents were submitted to the Tribunal at the review hearing including an employment reference, receipts for educational purposes and education results. All submitted material has been duly considered by the Tribunal.

14. 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

15. 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.

16. 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?

17. 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.

18. 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.

19. 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.

20. Further, the applicant maintained that his Student visa was granted by Officer B, who had not been shown to receive payments from Mr C but rather had processed a batch of visas to increase her statistical output, and therefore no fraudulent conduct was apparent. The applicant submitted further supporting material including financial records, a statement from his brother confirming his financial support, and documents purportedly indicating that he satisfies the criteria for the grant of the Student visa. Additionally, by way of submitted documentary material, the applicant advised the Tribunal that he has been in a cohabiting relationship with Ms Ozies, who is an Australian citizen, since March 2018 after meeting her one month earlier. Statements from the applicant and Ms Ozies were submitted which outline the nature of their relationship and the hardship to be faced by them if the Student visa was cancelled. Medical evidence was submitted indicating Ms Ozies became pregnant during the relationship, however by the time of the review hearing she was no longer as the result of a miscarriage. Additional documentation was also submitted by the applicant in support of his claims that he is a bona fide student in Australia and was gainfully employed in Nigeria prior to his departure from that country. The aforementioned supporting material has been duly considered by the Tribunal and it is afforded some weight against cancellation of his Student visa.

21. At the review hearing, the Tribunal began by explaining its role and the purpose of the hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(g) of the Act as the delegate concluded the prescribed ground in r.2.43(1)(o) exists as he reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, it must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

22. The applicant gave oral evidence to the Tribunal which may be summarised as follows. He confirmed his submitted statements were true and correct, and advised that he had nothing to add about the NOICC or his response to it. The applicant disagrees with the decision to cancel his visa because he trusted his distant cousin, never did anything wrong, his brother sponsored him and the delegate did not weigh factors in his favour such as his study in Australia, the submitted documents, his circumstances and his lack of knowledge regarding the alleged fraud. The applicant advised that he worked as an engineer in Port Harcourt in Nigeria with JOENY Integrity Nigeria Limited at the time of his Student visa application. He added that he also held employment in his brother’s company, Texshare International Services (aka Texshare Motors), as a sales representative. The applicant maintained that both sources of employment were located in Port Harcourt.

23. The applicant indicated his brother put him in contact with his distant cousin Petersen in Australia. According to the applicant he liaised solely with Petersen in relation to his Student visa application, sending all supporting documents through him. Petersen apparently advised the applicant that there was a lawyer working on his visa application. The applicant paid Petersen $7,500 to cover all matters concerning that application. The applicant undertook an English language test and had a video interview with a staff member from his educational institution, Queensford College. In due course Petersen gave the applicant his COE. The applicant told the Tribunal he did not see the Student visa application himself, nor did he know who the lawyer was, rather he relied upon the advice of Petersen alone. The applicant outlined his educational background in Nigeria, which includes possession of an Engineering Degree, and he maintained he was employed at both JOENY Integrity Nigeria Limited and Texshare International Services (aka Texshare Motors) prior to travelling to Australia.

1. During the review hearing the Tribunal conferred with the applicant and the representative regarding the existence of the s.375A certificate dated 21 November 2017, the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018. The Tribunal outlined that redactions of material supplied to the applicant were due in part to these certificates and also due to the application of APP 6. The applicant was invited to comment upon the validity of the aforementioned non-disclosure certificates and the privacy redactions. The representative submitted that they had no submissions to make, but noted they had no problems with the redactions. The Tribunal expressed its preliminary view that the s.376 certificates are valid as public interest grounds are stated and that the redactions had been properly made. The Tribunal outlined that the ‘gist’ of the information covered by the majority of the redactions related to the identities of third parties. The applicant was invited to make submissions upon this however he declined to do so. Following careful consideration, the Tribunal is satisfied that the s.376 certificates are valid and accordingly it has exercised its discretion to release material in redacted form having regard to the stated public interest grounds and providing the applicant with the opportunity to comment upon the ‘gist’ of the material not disclosed in full to him (noting also that redactions have been made in accordance with APP 6). For the sake of completeness, the Tribunal 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 procedures in s.359A and s.359AA of the Act.

2. The Tribunal raised with the applicant that the Registry did not send him a copy of folios 165-180 of Departmental File BCC2017/2360024 in accordance with the applicable s.376 certificate (the ‘Student visa Assessment methodology’ document). Given that the s.376 certificate is valid, the Tribunal determined not to release the document in full to the applicant but provided him the ‘gist’ of the information contained within, in conjunction with other information, and did so pursuant to the procedure in s.359AA of the Act:

   a.The gist of the information relates to the document entitled ‘Student visa Assessment methodology’. It contains 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 (GTE) 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 in a more detailed fashion. Generally, an applicant would be interviewed by a Departmental Officer in relation to such visa applications;

   b.The Departmental file BCC2017/1264980, which is the Student visa application file, indicates that the applicant had not provided to the Department a copy of evidence of his employment, nor a sponsor letter to confirm he would have access to their funds (in this case his brother) at the time he was granted the visa; and

   c.The document ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017, also known as the ‘Key Findings PMOI’ document, indicates that it is almost certain that 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.’

3. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that his Student visa was obtained as a result of fraudulent conduct by a Departmental Officer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant requested more time and an adjournment was duly granted.

4. Following the adjournment, the applicant responded to the s.359AA information by indicating that there is a reasonable suspicion that Departmental employees have been involved in fraud, however he maintained that he has no knowledge of what happened. The applicant indicated his view that he would have met the criteria for the grant of the visa in any event, citing matters such as his genuine financial sponsor and genuine intention to study. He maintained it would be unfair to be punished for the actions of others. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

5. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

   a.The Departmental file BCC2017/2360024 at folios 160-164 contains an audit by a Departmental Subject Matter Expert of his Student visa application. The Departmental expert determined that he did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as his submitted Genuine Temporary Entrant statement was similarly worded to the statements of others granted Student visas by Departmental Officers suspected of granting visas improperly, no evidence of his employment was provided with his visa application, no sponsor letter was provided to confirm he would have access to their funds (in this case his brother), his brother is not listed as a sibling in his visa application, and his visa application indicates that he is married to a Ms Vivian Akom who is not accompanying him to Australia. For completeness, the Tribunal noted 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;

   b.Further, the Departmental expert indicates that the Pearson English Language Test result he submitted with his visa application is confirmed to be non-genuine and is therefore a bogus document in accordance with Public Interest Criterion 4020; and

   c.For completeness, the Tribunal notes that his Student visa application file BCC2017/1264980 contains the particulars referred to by the Departmental Expert including a copy of the Pearson English Language Test result number 311259515 and the Genuine Temporary Entrant statement.

6. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that his Student visa was obtained as a result of fraudulent conduct by a Departmental Officer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant advised that he would respond straight away.

7. The applicant responded to the s.359AA information by indicating that he received a copy of his Student visa file (BCC2017/1264980) in the June 2019 correspondence from the Tribunal. He indicated his surprise at its contents and maintained he never made the visa application himself. He denied knowledge of any errors and was shocked to see the Genuine Temporary Entrant statement submitted on his behalf. The applicant did not know why Petersen submitted the documents that he did. The applicant advised that he had provided genuine documents to the Tribunal. He denied that his Pearson English Language Test result was non-genuine, indicating he called the Test Centre and logged in to see his results. The applicant advised that he was married to Vivian, but separated from her, at the time of the Student visa application. He indicated he was formally divorced in May 2017 after his arrival in Australia. The applicant also advised that he would not have the sponsorship of his brother then not refer to him in the visa application itself, disavowing knowledge of the contents of the Student visa application. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

8. The Tribunal indicated to the applicant that the material raised with him in the s.359A invitation prior to the hearing, that is the Visa Cancellation Referral Report and the two Investigation Reports into LES Misconduct, tends to suggest that his visa was granted by Officer B, in a manner that did not follow established Departmental procedures and therefore it was obtained as a result of fraudulent conduct. The applicant was invited to comment and indicated that he only found out about Officer B after reading the investigative reports sent to him, he has never visited South Africa, he doesn’t know Officer B, he had no knowledge of what happened, he trusted Petersen and he attended his interview with his education provider. The applicant added that the reports indicate Officer B was granting visas to increase her output and he had no knowledge of this.

9. The Tribunal raised with the applicant that the two Investigation Reports into LES Misconduct make findings that Officers A and B colluded with each other by being in contact during the investigation contrary to the terms of their suspensions. For example, Officer B initially denied being in such contact then admitted it only when presented with evidence from mobile phone records. The investigators found portions of Officer B’s evidence to be inconsistent and implausible. They determined that Officer A received payment for granting Student visas and also that she assigned applications to Officer B in a manner contrary to established Departmental procedures. They also determined Officer B granted Student visas to Nigerian Students based upon the advice of Officer A and without applying appropriate visa assessment processes and scrutiny. The Tribunal indicated that this material, which was raised with the applicant according to s.359A of the Act, tends to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and replied that he had no knowledge of these matters. The Tribunal also raised to the applicant’s attention that the aforementioned investigative reports indicate Officer B was not just increasing her statistics through her actions but was involved in more sinister conduct. The applicant was invited to comment and replied that he had no knowledge of this.

10. The Tribunal raised with the applicant that in written submissions he indicated he liaised with Petersen who then appears to communicate with Mr C in relation to his Student visa application. Further, the applicant submitted copies of emails claiming these men were acting inappropriately in relation to his Student visa application and those of others. The Tribunal invited the applicant to provide further information and he advised that before he came to Australia he trusted his brother, had no reason to doubt his advice and his brother put him in touch with Petersen. The applicant advised that he relied on Petersen, especially when he was in contact himself with his proposed education provider in Australia. The applicant informed the Tribunal that he obtained bank statements and did all he could to submit correct documentation. He added that he paid $3,000 to ‘the lawyer’ but never met Mr C, only learning of his identity from the investigative reports.

11. When the Tribunal raised with the applicant that it seemed curious he had no involvement with his Student visa application other than to send documents to a third party, the applicant responded that he had lived in Nigeria his whole life and just relied upon Petersen. He apparently only learned of the Department’s online application system when he arrived in Australia and he doesn’t know how it works. The Tribunal raised with the applicant that it might have difficulty accepting he had no involvement with his Student visa application other than to send documents to a third party, inviting his comment. The applicant responded that he trusted his distant cousin Petersen, he didn’t know of the processes at the time and now knows more of these processes.

12. The Tribunal drew to the applicant’s attention that given the material raised with him in the s.359A invitation prior to the hearing, that is the Referral to the General Cancellations Network Cancellation Consideration document, the Visa Cancellation Referral Report, and the two Investigation Reports into LES Misconduct, indicates Mr C made payments to Officer A to obtain Student visas, this might tend to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and responded that he never had any contact with Mr C, he only knew Petersen and had no reason to doubt him.

13. The Tribunal indicated that the above matters raised with him might tend to suggest that his Student visa was obtained as a result of fraudulent conduct, the ground for cancelling his visa exists and that discretion should be exercised to cancel his visa. The applicant was invited to comment and responded that having seen the investigations he has no doubt that the Officers were involved in fraudulent conduct. However, he added that it would be fair to consider his own circumstances as the reports did not show any involvement by him. The applicant informed the Tribunal that he just followed the advice of his cousin.

14. When asked by the Tribunal why he came to Australia on 21 April 2017 as reflected in the delegate’s visa cancellation decision, the applicant explained that he came to study and still wants to complete his studies. When asked by the Tribunal to outline his study history in Australia, the applicant indicated he initially was intending to study a Certificate IV in Business, then a Diploma of Business and then an Advanced Diploma of Business. He started the first course but then his mother in Nigeria became ill and so he changed his course to a Certificate III in Individual Support. The applicant explained that he was studying when he received the NOICC, his mother passed away on 27 August 2017 and he remained studying when his Student visa was cancelled. The applicant’s mother was subsequently buried in Nigeria, he was taken into immigration detention for a period and following his release on a Bridging Visa he became depressed and it took several months for him to be accepted back as a student at his educational college. The applicant advised that he completed his Certificate III in Individual Support in February 2018, deferred his studies for a time pending advancement of his review application, and then completed his Diploma of Business in March 2019. The applicant wishes to commence an Advanced Diploma of Business, however he has not yet enrolled as he is awaiting the result of his application for review and doesn’t want to expend more funds if he cannot remain in Australia to complete the course. The applicant also doesn’t want the Department to come after him.

15. The applicant outlined that his future intentions are to finish the Advanced Diploma of Business, noting he already has an Engineering Degree. He also explained that he has a de facto partner now, Ms Ozies, and they are planning a traditional (indigenous) marriage in the near future. The applicant advised that she recently had a miscarriage in May 2019. He is hopeful he can assist with the growth of his brother’s business in Nigeria following completion of his studies, however he noted that Ms Ozies wouldn’t feel safe moving with him to Nigeria. The applicant explained that on 14 April 2019 he lodged an onshore Partner visa application sponsored by Ms Ozies. The Tribunal raised with him that the aforementioned evidence might tend to suggest he is not intending to remain in Australia as a genuine temporary entrant for study, to which the applicant replied, “when love happens what do you do?” The applicant outlined that Ms Ozies doesn’t want to leave Australia but in Nigeria he is still connected at home and he wants to play a role in his brother’s business.

16. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    a.The Tribunal file at folios 22-36 contains his records of study, as at December 2017, from the Provider Registration and International Student Management System (PRISMS) indicating limited course completion by him.

17. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that at that time he had not demonstrated he had been in Australia as a genuine student. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant advised that he would respond straight away.

18. The applicant responded to the s.359AA information by indicating that when he went into detention he couldn’t study and when released he was depressed and completely lost. He has committed no crime and was not fraudulent. He tried to return to his educational college but could not obtain a COE until he could prove himself to be accepted back for study. The applicant reiterated that he completed his Certificate III in Individual Support and the Diploma of Business. The Tribunal has carefully considered the applicant’s response to the s.359AA information and accepts the reasons for his break in study and that he completed further studies following the date of the PRISMS records.

19. When asked by the Tribunal to outline his present circumstances, the applicant explained that he is willing to return to study but has uncertainty regarding his application for review. He holds a Bridging Visa E with a 40 hour per fortnight work limitation which he says he has not breached. The applicant has performed casual work as a concreter and a carer in Australia. He indicated he has not breached any visa conditions at all.

20. The Tribunal raised with the applicant that all the Australian visas he has held are of a temporary nature and that the purpose of the Subclass 500 Student visa is to enable a visa holder to study and then return to their home country at the completion of their studies. Additionally, there should be no expectation that the grant of a Subclass 500 visa would lead to an extended stay in Australia. The applicant was invited to comment upon the aforementioned and he advised he understands the terms and conditions of the visa. The Tribunal raised with the applicant that his Partner visa application might tend to suggest he is not seeking a temporary stay in Australia, inviting his comment. The applicant replied that this situation is out of his control as his partner, Ms Ozies, was earlier pregnant (she subsequently had a miscarriage) and he was waiting for his review hearing. The applicant met Ms Ozies on 7 February 2018 and commenced cohabitation with her on 6 March 2018. The Tribunal raised with the applicant this might appear to be a relatively quick inception of the relationship, to which he responded that they initially drove to each other’s residences but Ms Ozies’ vehicle was faulty and she suggested they live together to save money. The applicant advised that he and Ms Ozies have lived together since that time in various suburbs.

1. When asked by the Tribunal if he had a compelling need to remain in Australia, the applicant responded that he cares for his partner, wants to be there for her and does not want to be separated. He added that she has depression and recently had the miscarriage. The applicant also advised that Ms Ozies has an adult child aged 21 years from a previous relationship. When asked by the Tribunal if he had been married before, the applicant indicated he was married to Ms Vivian Akom (nee Orji). The applicant explained that his family members reside in Nigeria but his distant cousin Petersen, whom he saw one month previously, resides in Australia. Petersen provided accommodation to the applicant when he first arrived in Australia. The applicant advised Petersen came to Australia himself as a student and then married.

2. When the Tribunal explored the relationship of the applicant and his distant cousin Petersen, including the frequency of their contact, the applicant provided vague evidence advising that Petersen had moved, he is not sure about Petersen’s work and that he never met Mr C himself. The applicant never got his money back from Petersen. Apparently Petersen told the applicant that he was introduced to Mr C by the educational college and also that he later tried unsuccessfully to contact Mr C about the visa matters. The applicant also indicated he didn’t wish to try to contact Mr C himself. The Tribunal observed the demeanour of the applicant to be evasive during the provision of the aforementioned evidence.

3. When asked by the Tribunal if he or anybody else would face hardship if his Student visa was cancelled, the applicant replied that he has been through a lot with this process which has cost him money and made him fearful of the authorities and of ‘anything false’. He is trying to reside in Australia as a good resident and wants to be free of the cancellation issue. The applicant also advised that the cancellation has affected his partner, most of her family resides in Western Australia and she has some extended family at the Sunshine Coast who he has visited twice but can’t recall their names. The applicant confirmed during the review hearing that he has no children.

4. When asked if there were circumstances beyond his control that led to his visa being considered for cancellation, the applicant replied that there are because the fraud that was investigated is beyond his control. The Tribunal sought to clarify with the applicant his evidence that he was in contact with Petersen who is his distant cousin, whom he sees from time to time, but Petersen can’t provide further information on the current situation with his visa. The applicant replied that Petersen is his own individual and he can’t force him to provide information. He added that he has tried to obtain information from Petersen but it is beyond his control. The Tribunal drew to the applicant’s attention that it might have difficulty accepting his evidence that when he was in Nigeria he merely passed documents to Petersen, relied upon him, was subsequently accommodated by him in Australia and sees him in Australia from time to time, but Petersen can’t provide any further information concerning his present situation. The applicant informed the Tribunal that when he came to Australia he met other people accommodated in the apartment, some of whom were affected by the investigation and they didn’t know it was Petersen. The Tribunal observed the applicant to provide vague evidence, in an evasive fashion, concerning his dealings with his distant cousin Petersen.  

5. The applicant indicated he has always been truthful and cooperative with the Department and there are no secondary applicants on his visa subject to consequential visa cancellation. The Tribunal raised with the applicant that if his 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, he would be liable to removal from Australia and he would likely face difficulties obtaining a new Australian visa in the future. The applicant was invited to comment and replied that he is trying to protect his family name and he owes it to his deceased mother to fight for his visa so he can forgive himself when he returns to Nigeria to pay his last respects. When asked by the Tribunal if there is any reason he cannot return to Nigeria he responded that he doesn’t think his sisters will forgive him, there being nothing else. Prior to the conclusion of his oral evidence the applicant confirmed there are no other matters he wished for the Tribunal to consider in his case.

6. The Tribunal also took oral evidence from Ms Ozies, the applicant’s partner, which may be summarised as follows. She advised that she met the applicant in February 2018 and they have cohabitated since 4 March 2018. Ms Ozies is receiving funds from a scholarship in relation to a social work internship she is performing and in addition receives an annual Abstudy payment from Centrelink. Ms Ozies and the applicant do not have children together. She is aware the applicant was previously married but she didn’t enquire into the details. Ms Ozies has spoken to some of the applicant’s offshore family members.

7. Ms Ozies advised that the applicant came to Australia to study and has completed some of his studies, although he is not currently studying and performs casual work in aged care. Ms Ozies has occasionally met up with Petersen and his brother Emmanuel. She is aware of suspected fraud in the applicant’s case but never spoke to Petersen about it. Ms Ozies was not involved in the applicant’s Student visa application. She advised that the applicant’s visa should not be cancelled because they are in a relationship and are close. She suffers depression and indicated that it took a long time for her to gain employment in the internship which is now helping her. Ms Ozies is supported financially from the applicant’s casual work and also emotionally by him. She indicated she would suffer if his Student visa is cancelled. Ms Ozies confirmed to the Tribunal that she had no further evidence to provide and the applicant had no further information to add following her oral evidence.

8. The applicant concluded his oral evidence by requesting the opportunity to have his Student visa given back, promised to try his best in Australia and stated he has not committed any offences in Australia. The applicant told the Tribunal he accepts there is a reasonable suspicion that his visa was obtained as a result of the fraudulent conduct of another, but he was not involved in that. Prior to the conclusion of the review hearing the applicant confirmed he had no further evidence to provide and the representative advised he had no oral submissions to make.  

   The ground for cancellation exists

9. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(g) of the Act exists. 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)’.

10. 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 4 July 2019.

11. 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).

12. 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].

13. The Tribunal notes that in submissions on behalf of the applicant it was contended that a prior decision of the Tribunal (differently constituted) in the matter of Odinkaeze[12] is ‘close to identical’ to the present application for review regarding the assessment of whether the ground for visa cancellation exists. Whilst the Tribunal has paid due regard and respect to this prior decision, it is not binding with respect to the present review and, in any event, the facts are distinguishable between the two matters. For example, in the earlier matter there is no evidence of the involvement of Mr C, whereas in the present matter the applicant has submitted evidence that Petersen liaised with Mr C in relation to his Student visa application. Ultimately the Tribunal (differently constituted) in Odinkaeze, assessing the particular evidence before it and making findings of fact accordingly, reached the conclusion that it was not satisfied of a causal link between the obtaining of the visa and the fraudulent conduct of any person. The task for the Tribunal in the present review is to assess the particular evidence before it and make its own findings based upon such evidence.

    [12] Odinkaeze (Migration) [2018] AATA 1295.

14. Having paid careful consideration to 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 B for the reasons that follow. As previously outlined, the Tribunal raised elements of the investigative reports with the applicant utilising the provisions of s.359A and s.359AA 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 B lacked the formal authority to process the applicant’s Student visa application and that Officer A lacked formal authority to assign this application to the former. It is worth pausing to reflect that the aforementioned Officers (LES) were not formally assigned to process Student visa applications at the time they did so in relation to the cohort examined in the investigative reports and neither disputed this position.

15. The Departmental Subject Matter Expert audit of the applicant’s Student visa application revealed that, at the time the visa was granted on 12 April 2017, the application was deficient in several respects including that no evidence of his employment, nor financial sponsorship letter to confirm his access to funds (in this case of his brother), was provided with the visa application. If established Departmental processes were followed, such omissions 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 lacking the information ordinarily required in accordance with established Departmental procedures at the time his visa was granted by Officer B, who acted without formal authority to do so. In reaching the aforementioned 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, the confirmation of financial sponsorship from his brother, financial records, possession of health insurance, documents demonstrating his educational attainment and employment records). Some weight is afforded by the Tribunal to this material, however, its submission post-visa grant does not displace the conclusion that the applicant did not furnish sufficient evidence to the Department to demonstrate that he satisfied the criteria for the grant of the Student visa at the time it was granted by Officer B, who acted without formal authority and in contravention of established Departmental procedures to make the grant.

16. Additionally, the Subject Matter Expert raised concerns that the Genuine Temporary Entrant (GTE) statement was similarly worded to the statements of others granted Student visas by Departmental Officers suspected of granting visas improperly. The investigative reports conclude that Officer A received corrupt payments from Mr C and further that Officer A assigned several visa applications to Officer B for processing without formal authority to do so. The applicant submitted evidence to the Tribunal indicating his distant cousin Petersen liaised with Mr C in relation to his Student visa application, albeit without his knowledge. The investigative reports also concluded that Officers A and B colluded during the investigation into their alleged activities and both were found to have acted improperly in breach of their conditions of employment. Further, the investigators found portions of Officer B’s evidence to be inconsistent and implausible.

17. Having regard to the above matters, the Tribunal does not accept the contention advanced by the applicant that Officer B was processing Student visa applications merely to increase her statistical output. Nor does the Tribunal accept that, at the time the applicant was granted his Student visa, he had furnished the Department with the material required to have satisfied the criteria for grant of that visa in light of established Departmental procedures. If those procedures were followed correctly, the applicant’s visa could not have been granted by Officer B who lacked formal authority to make the grant. The Tribunal places high weight upon the evidence and findings contained in the investigative reports, including the established Departmental procedures outlined, given their official nature, content and lack of persuasive evidence to disturb their veracity. On balance, the Tribunal reasonably suspects that the applicant’s Student visa was obtained as a result of the fraudulent conduct of Officer B (noting that the element of deceit seeking to gain an unfair advantage, and a causal link between the conduct and visa grant, are present). For completeness, the Tribunal also notes that the applicant in his oral evidence conceded there was fraudulent conduct by Departmental Officers but denied any involvement.   

18. The Tribunal notes that the applicant doggedly maintained his lack of culpability in relation to the evidence pointing to the improper actions of Officers A and B, Mr C and Petersen. The Tribunal developed serious concerns with the credibility of the applicant during the review hearing given his vague evidence, delivered in an evasive fashion, regarding his ongoing contact with Petersen in Australia. However, in relation to the assessment of whether the ground for visa cancellation exists, for reasons previously outlined, it is unnecessary for the Tribunal to be satisfied that the applicant has been involved in or is aware of the fraudulent conduct.

19. The Tribunal notes that the applicant denied provision of fraudulent Pearson English language test results to the Department. In the absence of direct evidence from the provider of such test, the Tribunal is prepared to accept the applicant’s assertions concerning this matter. Further, the Tribunal is also prepared to accept that he did not directly make entries in the online visa application form, including those which displayed inconsistent information (for example by having his brother as his financial sponsor but not declaring him as a sibling). Therefore, the Tribunal is prepared to accept that the applicant provided information to Petersen who arranged for the visa application to be lodged, without the applicant actually preparing the online application himself or being personally involved in fraudulent conduct. However, whilst the aforementioned matters weigh against cancellation of the applicant’s visa, the Tribunal does not accept they are persuasive indicators of an absence of fraudulent conduct regarding the grant of the visa.

20. 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

1. 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’.

2. 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].

3. 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.

4. 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.

5. The Tribunal notes that the applicant maintains he was not involved in any fraudulent conduct in relation to him obtaining the Student visa. Whilst the Tribunal developed some concerns with the credibility of the applicant as outlined above, it is prepared to accept that he was not himself involved in any fraudulent conduct and this weighs against the cancellation of his visa. However, the Tribunal does not accept that the ground for visa cancellation arose due to circumstances beyond the applicant’s control for the following reasons. The applicant is an educated individual who chose to pay his distant cousin Petersen for visa assistance upon the advice of his brother. On his own evidence, the applicant failed to perform any review of his visa application at all, rather he just sent material to Petersen. The Tribunal does not accept the contentions of the applicant that his trust in Petersen, fostered by faith in his brother’s recommendation, and his unfamiliarity with the visa application process, demonstrate the ground for visa cancellation arose due to circumstances beyond his control, given he failed to perform even a cursory review of his Student visa application.

6. The Tribunal accepts that the applicant will face some hardship if his Student visa is cancelled given he will lose the ability to complete study of the Advanced Diploma of Business in the short term, he has expended significant funds in coming to Australia to study, he and his family members will feel some upset at the situation (noting the applicant has keenly felt the loss of his mother and feels his sisters will not forgive him), he will feel depressed (noting there is no medical evidence to support a clinical diagnosis), and he will be anxious (noting there is no medical evidence to support a clinical diagnosis) regarding interactions with the Department as he has previously been in immigration detention. The aforementioned matters weigh against cancellation of his Student visa. 

7. The Tribunal notes that the applicant and Ms Ozies claim to be in a de facto relationship with plans to marry. The Tribunal accepts they will both face financial and emotional hardship if they are separated as a result of visa cancellation, noting that the relationship commenced after the applicant’s visa was initially cancelled by the delegate. The Tribunal accepts that Ms Ozies suffers depression (although no medical evidence was submitted concerning this issue) and had a miscarriage, matters with which the applicant has provided her assistance and therefore some hardship will be caused if his visa is cancelled. However, the Tribunal notes Ms Ozies is completing her internship and is demonstrating an ability to function in daily life. The Tribunal accepts the applicant has lodged a Partner visa sponsored by Ms Ozies which may 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 Ozies regarding the aforementioned matters weighs against cancellation of the Student visa, although the weight is diminished somewhat given they chose to commence a relationship following the initial cancellation decision by the delegate. The Tribunal also accepts that Ms Ozies’ family members will feel some upset if the applicant’s Student visa is cancelled and this weighs against cancellation of the visa.

8. 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 would impede the processing of his onshore Partner visa application sponsored by Ms Ozies 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 Ozies. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

9. 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 7 July 2019.

10. Given that the applicant has completed the majority of his studies and has not enrolled in or committed funds to his proposed study of the Advanced Diploma of Business, the Tribunal is not satisfied that his future study plan presents a compelling need for him to remain in Australia. Further, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia on account of his relationship with Ms Ozies as they embarked upon it following him arriving in Australia on a temporary Student visa and after it was cancelled, and Ms Ozies is demonstrating her ability to undertake her internship in spite of the health issues she faces. Whilst the Tribunal accepts that the applicant’s onshore Partner visa application may be impeded by an exclusion period 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 Ozies 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.

11. The Tribunal accepts there is no evidence before it of adverse past or present behaviour by the applicant towards the Department of Immigration (now entitled 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.

12. There is no evidence before the Tribunal indicating that Australia’s international obligations would be breached as a result of the visa cancellation, noting the applicant has no children and has made no claims regarding non-refoulement or an inability to return to Nigeria for reasons of facing harm or any other serious concern for his welfare. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa. 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

13. 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 aforementioned 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 this visa, as outlined above. However, the circumstances in which the ground of visa cancellation 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 B, are matters of grave concern for the Tribunal.

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

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

    DECISION

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

    K. Chapman
    Member