Borode (Migration)

[2020] AATA 1380

Borode (Migration) [2020] AATA 1380 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Temitope Adeyemi Borode

CASE NUMBER:  1725139

HOME AFFAIRS REFERENCE(S):          BCC2017/2968747

MEMBER:James Lambie

DATE:14 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 14 April 2020 at 4:49pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – fraudulent conduct of any person – local department employees in Pretoria may have bypassed procedures – visa application processed quickly and without proper checks – documentation – education and statement of purpose – study in Australia at much lower level in different subject area – if properly assessed, visa would not have been granted – reasonable suspicion of fraud – discretion to cancel visa – 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 a visa applies to the applicant, namely, that the Minister reasonably suspects that visa has been obtained as a result of the fraudulent conduct of any person. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

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

8. The applicant lodged a Subclass 500 visa application electronically on 24 March 2017. The visa was granted on 5 April 2017 by the Department post in Pretoria, South Africa. The applicant arrived in Australia as the holder of a Subclass 500 student – vocational education sector visa on 27 April 2017.

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

10. On 31 May 2019, the Tribunal sent the applicant (through his representative) copies of documents contained in the departmental and Tribunal files in response to a request for written material made under section 362A of the Act, inviting the applicant to comment. Included in this material was a copy of a report entitled “Fraud by Locally Engaged visa Processing Officers at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation” (‘the Cancellation report’), together with a number of annexures.  Because these documents refer to a number of separate visa applicants, Departmental staff and law enforcement methodology, they are heavily redacted under ss 375A and 376.  The applicant’s representative challenged the redactions on the basis that the public interest grounds for them are not made out and contended that the provision of redacted copies was prejudicial to the applicant.  I am satisfied that the redactions made in the documents provided to the applicant are necessary for the protection of the privacy of other individuals and for the purposes of law enforcement.  In any event, I have found no reason to seek recourse to any unredacted documents and am satisfied that the redacted details are neither of any potential assistance to the applicant nor relevant to the determination of the application.

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

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

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

14. In submissions and at the hearing, the applicant sought to challenge those findings and to invite positive findings that he did, at the relevant time, meet the relevant criteria. While I have 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 required criteria.

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

16. The applicant submitted a detailed statutory declaration dated 13 June 2019, in addition to giving oral evidence at the hearing. He claims that the documents he submitted with the visa application were genuine, that their veracity was apparent on their face, and would have been confirmed in any event. He rejects the characterisation of applications from Nigeria as “high risk”. He claims that he is an extremely well qualified applicant having succeeded in every aspect of his studies in Australia and having been accepted to undertake a Masters of Science in the mechanical engineering program at the South Dakota State University. He has been granted a US visa for that purpose.

17. The characterisation of Nigerian visa applications as “high risk” is a departmental policy determination that forms part of the factual matrix of the alleged fraudulent conduct. It is not a matter that I can set aside for the purposes of this application.

18. With his submissions, the applicant attached a selection of the documents lodged with his visa application. These include his statement of purpose, his high school academic transcript for the year 2002, his English-language score report (TOEFL overall score of 80) and documents from the United Bank for Africa dated 16 March 2017 in respect of his financial sponsor. He also submitted a number of documents that were not included with his visa application or were produced for the purposes of this application. These include a letter from his former employer dated 6 June 2019 and copies of his degree diploma and academic transcript.

19. It is readily apparent from the visa application that the applicant failed to disclose the fact of his undertaking and completing a degree in engineering. This would have been highly relevant to the processing of his visa, particularly in assessing the genuine temporary entrant criterion. Direction Number 69 paragraph 12(a) provides that decision-makers should have regard to “whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country.” I consider it quite unlikely that a visa processing officer, in the proper performance of their duties, would approve a visa for a certificate course in automotive repair when an applicant already holds an honours degree in engineering.

20. Of more concern is the fact of the nondisclosure of the tertiary qualification and the positive statement in the visa application that the highest level of education the applicant had achieved was his high school certificate. At the hearing and in the supplementary submissions, the applicant sought to explain the misleading statement by claiming that his university had been on strike at the time he lodged the visa application and, the academic transcript being unavailable, he thought it appropriate to refer only to the level of education he could establish through the provision of documents. I reject this explanation. The applicant’s statement of purpose (dated 18 March 2017 and lodged with his visa application) provides a work history in which the mention of tertiary studies is entirely absent and which invites, in my view deliberately, the impression that since 2006 his entire career had been in automotive repair. Further, the employer’s letter is at odds with the dates provided by the applicant in his statement of purpose as to his work history. In these circumstances, I am of the view that, were the facts now disclosed to have come to the attention of a visa processing officer, it is highly unlikely that the visa would have been granted.

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

21. 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)’

22. 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]

23. 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]

24. 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.

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

26. 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. Contrary to the applicant’s submissions, and as outlined in paragraphs 14 and 16 above, it appears clear to me that because several obvious ‘red flags’ appear on the face of the visa application the visa, if properly processed, would not have been granted.

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

28. 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

29. 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’.

30. The applicant presented written submissions and gave oral evidence as to the hardship he might suffer if the visa were to be cancelled, and to the other discretionary factors. I have given careful consideration to this material.

31. I have considered the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. He arrived in Australia on 27 April 2017 as the holder of a Subclass TU 500 vocational education visa. He submitted material indicating that he had successfully completed the requirements for the diploma of automotive technology in July 2019. In the submissions of 18 June 2019, there was reference to his intention to undertake a certificate III in automotive diesel engine technology. This appears to have been superseded by an intention to accept the offer of postgraduate studies at South Dakota State University. There was no reference in evidence that he has any family ties in Australia. Accordingly, while I give some weight to the applicant undertaking the studies for which he sought the visa, the evidence strongly suggests that he now wishes to enter the United States. There is therefore no compelling need for the applicant to remain in Australia.

32. I have considered the extent of his compliance with his visa conditions. The applicant claims that he has complied and I am not aware of any breaches. I give this a degree of weight in his favour.

33. I have considered the degree of hardship that may be caused to the applicant and any family members. The applicant’s principal complaint is that a visa cancellation will show up on his immigration record and may jeopardise his US visa and subsequent postgraduate studies in the United States. I note that the visa has already been granted, having been issued in December 2018. This was some 14 months after the delegate cancelled his Subclass TU 500 Visa.  No evidence was presented to support the assertion that his US visa would be cancelled should the delegate’s decision be affirmed.  The applicant also complained that he has spent some AUD$40,000 on his education, visas, airfares, living expenses and legal fees.  I would observe that he has achieved while in Australia what he claimed he was seeking to achieve in his statement of purpose.  I would also observe that the amount spent on this list seems remarkably economical over a two-and-a-half year period.  There was no other evidence of any financial, emotional or psychological hardship to the applicant or any family members.

1. The ground for cancellation of the visa arose in circumstances where, as discussed, a departmental employee engaged in fraudulent conduct to grant the visa. There were deficiencies and misleading information in the visa application, including matters that justified the application being flagged as “high risk”. To deliberately conceal the existence of a tertiary degree in order to be granted a visa to pursue a much lower course of study, where the applicant claims to have already completed an apprenticeship, raises very serious concerns as to whether the applicant was ever a genuine temporary entrant. Owing to the conduct of Officer B, these matters never came to light. I am satisfied that, but for the fraudulent conduct, the visa would not have been granted. What weight I might have been prepared to give in favour of the applicant that the fraudulent conduct was not alleged to have been undertaken by him is outweighed by the fact that the applicant gave deliberately misleading information.

2. There is no indication of any adverse behaviour towards the Department and I give this a small degree of weight.

3. There are no dependent visa holders who face any consequential cancellations should the applicant’s Visv be cancelled. 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 granting of a further temporary visa for a specified period. All of these legal consequences I have taken into account and accorded some weight in favour of the applicant.

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

5. The applicant’s representative advanced a submission that no real harm has been done by the granting of the visa and the integrity of the Australian visa regime remains intact and has not been affected. I cannot accept this submission. As I have found, the granting of the visa was affected by the fraudulent conduct of Officer B and the misleading information provided by the applicant. Notwithstanding the fact that he has now been granted a visa to enter the United States, I cannot be satisfied that the applicant was ever a genuine temporary entrant.

6. Taking all of these factors into account, I give the most significant weight to my finding that the visa was granted as a result both of the fraudulent conduct of the departmental employee and the misleading information provided by the applicant. In the applicant’s favour, I give the most significant weight to his compliance with his visa conditions. The applicant’s contention requested that I give particularly significant weight to the consequences that may flow from cancellation to his United States visa. That visa having already been granted, and there being no objective evidence of the consequences, I have given that matter no weight.

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