Asabi (Migration)

[2020] AATA 1496

Asabi (Migration) [2020] AATA 1496 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taiwo Michael Asabi

CASE NUMBER:  1725610

HOME AFFAIRS REFERENCE(S):          BCC2017/3118955

MEMBER:James Lambie

DATE:17 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 April 2020 at 5:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – fraudulent conduct of any person – local department employees in Pretoria may have acted improperly – documents not provided, unable to be authenticated, or substantially identical to those of other applicants – application processed in five days – reasonable suspicion of fraud – discretion to cancel visa – concession that some documents unquestionably non-genuine – maintenance of study record and compliance with visa conditions – child with Australian citizen – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 362A, 375A, 376

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

CASES

Guo v Commonwealth of Australia [2017] FCA 1355

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

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applies to the applicant. 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 11 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Olajumoke Adetutu, who is the applicant’s cousin.

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). 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, namely, that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

8. The applicant lodged a Subclass 500 student visa application electronically on 10 December 2016. The visa was granted on 16 December 2016 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia on 31 January 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 19 June 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 Officers at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation”(‘the cancellation report”), together with a number of annexures.  Because these documents refer to a number of separate visa applicants, departmental staff and law enforcement methodology, they are heavily redacted under ss 375A and 376.  The applicant 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). Officer A was found to have acted improperly and in breach of her conditions of employment.

12. The applicant’s visa application of 10 December 2016 was processed and approved by Officer A, the grant being made on 16 December 2016. The applicant’s visa is discussed in detail in a report titled Investigation Report LES Misconduct (“the Officer A report”) as “allegation nine” at paragraphs 193 to 206, the report finding that there was sufficient evidence, on the balance of probabilities, that Officer A knowingly granted the visa for personal financial gain, likely received via a bulk payment in January 2017 . 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 found:

    a.Similar courses are available in both South Africa and Nigeria.  The applicant’s reasons for wishing to study in Australia were expressed identical wording to those of three other visa applicants.  Accordingly the assessment officer was not satisfied that the applicant had provided sufficient justification for his decision to study in Australia;

    b.The letter of employment provided by the applicant was almost identical in wording and formatting with those provided by five other visa applicants. The employer’s website displays a different address and telephone numbers than those on the employment letter and the logo on the letterhead of the employment letter is different to the logo of the company on the website. The assessment officer found it unlikely that the employment letter was genuine;

    c.The sponsor letter provided by the applicant used unusual wording and formatting and was almost identical to those provided by seven other visa applicants. The assessment officer found it unlikely that the sponsor letter was genuine;

    d.No evidence of education was provided with the visa application. It was therefore impossible to confirm whether the proposed studies were being undertaken at the appropriate level;

    e.The authenticity of bank statements and health insurance documents could not be confirmed. There was no evidence that Officer A had verified the information;

    f.The applicant had answered “no” to the question: “does the applicant have any parents or siblings in or outside Australia?” Elsewhere in the application he had claimed that his half-sister in Australia would sponsor him.

13. In written submissions and at the hearing the applicant, while accepting that there may have been insufficient evidence in the visa application to satisfy the genuine temporary entrant (GTE) criteria, submitted that he would have met of all the criteria if asked and should be afforded the opportunity to establish that he now met the 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.

14. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. The applicant’s 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.

15. In the course of the hearing, the applicant conceded that the statement of purpose, letter of employment and sponsor letter were unquestionably non-genuine.  This followed the receipt of evidence from Ms Adetutu, who denied that she had written the sponsor letter and, in fact denied having written or signed anything. She provided some information by telephone to Mr C and heard nothing further. The applicant’s evidence now is that, having been in contact with Mr C and providing him with a small assortment of documents, that was the last he saw of the visa application. He claims that he never saw the statement of purpose, letter of employment or sponsor letter. He has never worked for the claimed employer. His only other contribution to the visa application process was to attend at the Australian Visa Application Centre in Pretoria to provide biometric material. It is his evidence that he neither sighted nor signed the finalised application.

16. There are other anomalies arising from the material submitted to the Tribunal (for example those relating to the disparity in the names on the two senior school certificates), but in view of the matters in paragraphs 14 is not necessary for the purposes of this application to consider them further.

17. The applicant maintains that he is a genuine student and, had the visa application been properly processed, the visa would have been granted.

18. In view of the evidence, I am satisfied that the application, as lodged, does not satisfy the Schedule 2 criteria.  I am also satisfied that, on the basis of the lodgement of multiple bogus documents, the visa would not have granted.  It remains necessary for me to consider whether, for the purposes of this application, the specified grounds for cancellation have been made out.

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

19. 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)’

20. 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]

21. 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]

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

23. On the basis of the material available to me (and to the applicant), I am satisfied that the facts and matters described in paragraph 11 and 12, which have been subject to a rigorous departmental investigation, apply to the processing of the applicant’s visa. I am further satisfied that those matters constitute the fraudulent conduct of another person.

24. In order to form a reasonable suspicion that the applicant’s visa was granted as a result of the fraudulent conduct, there would need to be some evidence that the visa would not have been granted but for the fraud. By reason of the evidence discussed at paragraph 15 and my finding in respect of it at paragraph 18, I have concluded that the visa, if properly processed, would not have been granted.

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

26. 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

27. 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’.

28. The applicant gave oral evidence as to the hardship and other consequences he might suffer if the visa were to be cancelled. I have also given careful consideration to the detailed written submissions, lodged both before and after the hearing, of his representative.

29. I have considered the purpose of the applicant’s travel to and stay in Australia and whether he has a compelling need to travel to or remain in Australia. The applicant arrived in Australia on 31 January 2017 as the holder of the visa under consideration. The applicant has maintained his studies, having achieved the Certificate IV for which he made the application and is now enrolled in an MBA course at the Holmes Institute. I give this matter some weight in his favour.

30. It was submitted on behalf of the applicant that he has consistently complied with all of his visa conditions, including those on his current Bridging Visa E. I accord this is a small degree of weight in his favour.

31. I have considered the degree of hardship that may be caused to the applicant and any family members. The applicant claims that he and his family have paid a substantial amount of money to fund his goal of furthering his education to provide himself stronger future in Australia. The amount of money expended has not been quantified. He further submits that he has now partly completed his Masters degree and, should the Visa be cancelled, it is unlikely that he would have the opportunity to return to Australia to complete the qualification. I give this matter some weight in his favour.

32. Although it is nowhere referred to in any of the written submissions lodged on behalf of the applicant, and only arose from a direct question from me, the applicant is the father of a child born in October 2018. The mother is an Australian citizen, resident in Albury, New South Wales. He is not in a relationship with the mother but has been assessed for (and pays) child support in the amount of $85.74 per fortnight. Although the submission has not been explicitly made, I consider that, should the visa be cancelled, both he and the child would suffer emotional hardship from the separation and the child may suffer some financial hardship as a result of the disruption that may occur to the child support payments. I also observe that it was at all times clear to the applicant that he was in Australia on a temporary visa and that relationships, however intimate, he made in this country must at some point result in physical separation.

33. The applicant’s principal submission in relation to the discretionary factors is that of the circumstances in which the grounds for cancellation arose. In particular, I am asked to find that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control and, therefore, I should not affirm the cancellation decision. Mr Asabi maintains that he has been a genuine student throughout the process, having had no knowledge of the fraudulent conduct of the departmental employee and also having no knowledge or involvement in the fraudulent conduct of his agent. This submission would have been easier to entertain if there was any material before me to lend credence to the applicant’s claim as to the GTE criteria. Instead, his visa application has been infected by fraudulence on two fronts. While I am prepared to accept that he was simply caught unawares in the middle of this, there appears to have been very little that he has done to ensure the integrity of the material submitted in his name to the Australian government and, even at this late point in the proceedings, there is still insufficient material to satisfy the Schedule 2 criteria. I give what weight I can to the applicant’s claim to have been innocent of any fraudulent conduct, but this must be tempered by the fraudulent nature of the material submitted on his behalf and the fact that the material required to correct the record in those respects has not been provided.

1. There is no indication of any adverse behaviour towards the Department, to which I give a small degree of weight.

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

3. 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 were to 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 grant of a further temporary visa for a specified period. All of these legal consequences I have taken into account and given some weight to in his favour.

4. It was submitted on behalf of the applicant that there are no international obligations that may be breached by affirming the cancellation of the visa. For the sake of completeness, I have considered whether the terms of the UN Convention on the Rights of the Child might apply in relation to the best interests of the applicant’s daughter.  I note that the child is not ordinarily resident with the applicant and, in fact lives many hundreds of kilometres distant. While there may be some emotional and financial hardship attached to the cancellation of the visa, the fact of physical separation is necessarily attendant to a temporary visa. Nothing in a cancellation interferes with the legal and moral obligation to make provision for the child.

5. 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 expressed need to remain in Australia, his claims of hardship (those advanced by him and those that I have imputed) and to the circumstances in which the grounds or cancellation have arisen. The latter two of these considerations I have heavily qualified.

6. The fact that a visa has been granted as a result of fraudulent conduct, whether of the applicant or another person, is a serious matter going to the integrity of the immigration system. In this matter, there remain not only significant gaps required of the applicant in order for the visa property to be granted, but evidence of fraudulent conduct both in the preparation of the application and in its processing. 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 given the pervasiveness of the fraudulent conduct infecting the grant of this visa.

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

   DECISION

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

   James Lambie
   Senior Member