Ezindu (Migration)

[2020] AATA 1381

Ezindu (Migration) [2020] AATA 1381 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Franklyn Uchenna Ezindu

CASE NUMBER:  1725274

HOME AFFAIRS REFERENCE(S):          BCC2017/2968777

MEMBER:James Lambie

DATE:7 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 07 April 2020 at 10:17am

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 processed in four days with no steps to verify documentation – education and employment claimed – reasonable suspicion of fraud – no appearance at hearing – decision under review affirmed

LEGISLATION       

Migration Act 1958 (Cth), s 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

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 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 a visa applies to the applicant, namely, that the Minister reasonably suspects that the visa has been obtained as the 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. On 12 November 2019 the applicant declined the Tribunal’s invitation to appear before it to give evidence and present arguments and instead asked that the Tribunal consider the submissions lodged by his registered migration agent.

4. 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

5. 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?

6. 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.

7. The applicant lodged a subclass 500 visa application on 10 March 2017. The visa was granted on 15 March 2017 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia as the holder of that visa on 9 April 2017.

8. 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.

9. On 22 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, which correspondence also included an invitation to comment on the material. Included in the material were a number of departmental reports relating to the investigations, including a visa cancellation referral report entitled “Fraud by locally engaged visa processing officers at AHC Pretoria; 21 clients granted TU500 visas through LES VPO corruption; referral for consideration of visa cancellation” (“the Cancellation Report”). Because these documents refer to a number of separate visa applicants, departmental staff and law enforcement methodology, they are heavily redacted under sections 375A and 376. The applicant and his representative did not seek to make submissions on the redactions.

10. The cancellation 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. Officers A and B were both found to have acted improperly and in breach of the conditions of their employment.

11. The applicant’s visa application was processed and approved by Officer B within four days of its receipt. The cancellation 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. The cancellation report further notes that Officer B made the grant of the applicant’s visa without the visa application being allocated to her, in circumstances where she was not authorised to process such cases and where she had failed to apply the mandatory guidelines for visa assessment, including rigorous assessment for cases tagged high risk. Notwithstanding that Officer B was neither specifically assigned the application nor authorised to process such applications, 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. Departmental records indicate that nothing had been submitted to support the level of education the applicant had claimed.

12. The submissions lodged on behalf of the applicant argue that the applicant met the Schedule 2 criteria for the grant of the visa; that there is no evidence to establish a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud identified by the Department; and that the circumstances giving rise to the cancellation were outside of the applicant’s control.

13. I have given careful consideration to the submissions and documents provided by the applicant and will attempt to address each of his arguments in turn.

    Schedule 2 criteria

14. 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 fraud, the visa would have been granted in any event. With the submissions, the applicant submitted some documents which postdate the visa approval: a letter to the applicant’s uncle (his sponsor) from the GT bank of Nigeria dated 5 March 2018 confirming a term deposit in the amount of 40 million Nigerian naira (about AUD$168,000); a letter from the sponsor dated 13 March 2018 addressed to the Australian high commission and some email correspondence between the sponsor and the applicant’s representative dated 29 October 2018.

15. Unfortunately, the original visa application and attachments have not been provided to the Tribunal either by the applicant or from the department’s file. However, it would appear that the applicant’s former migration agent produced the applicant’s vaccination certificates, PTE results, sponsor letter (without attachments) and employment letter.

16. The applicant having declined the invitation to the hearing, I am compelled to rely upon the information and documents he has provided to the Tribunal. The department has assessed that the consideration of his visa was defective, having been conducted without due regard to the rigorous assessment it required of applications of this nature. Further, it has noted that there was no attempt to check the veracity of either the employment or past education claims made by the applicant. It notes that no material was submitted to support the level of education that the applicant claimed.

17. Further, the documents submitted by the applicant referred to in paragraph 15 do not seem to me to materially assist his case. The bank letter refers to an investment having been made by the applicant’s sponsor on the same day the letter was issued, nearly a year after the visa was granted. There is no statement of account attached or separately submitted that would allow me or a delegate to assess the actual availability of funds. The sponsorship letter dated 13 March 2018 raises more questions. For example, the sponsor styles his name differently in each letter, the signatures appear to be significantly different, and the level of English language proficiency seems to be strangely deficient in the later letter, or at best significantly divergent. In the circumstances, I do not feel that I can accord the later letter any degree of weight towards the applicant’s contention that he met and continues to meet the Schedule 2 criteria.

18. It also appears clear to me that the employer letter dated 25 February 2017 was deficient, merely stating that the applicant was currently employed, had been admitted to undertake the course of study and would return to resume his “duty with the company”. There is nothing to indicate his length of service or the use to which the course of study would be put. The employer having no web address on its letterhead, and no internet presence, there is no reason to doubt the department’s assessment that Officer B took no steps to verify the authenticity of this document.

19. Finally, the applicant’s representative submitted some email correspondence between the applicant’s former representative and the sponsor. The sponsor advised “the plan was for Franklyn to go to Canada but following a refusal of the Canadian visa and low cash flow after the exit of his father, the song [sic] called agent told me he can help Franklyn travel to UK or Australia and I chose Australia.” The fact of the Canadian visa refusal, not detected or referred to elsewhere in the departmental material, is a factor to which a delegate must have regard when assessing the genuine temporary entrant criterion for student visa applications: see Direction Number 69 paragraph 14 (a)(ii). The fact that it was apparently not assessed raises the possibility that the refusal of the Canadian visa was not disclosed. However, in the absence of the visa application material, I make no finding in respect of it.

20. On balance, I cannot be satisfied that the applicant did, or does, meet the Schedule 2 criteria.

    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. Alternative explanations were posited: that the delegate granted some visas merely to increase her output (Officer B not having been alleged to have received any money); that the applicant’s visa was perhaps processed in error; or that the applicant’s application, and others, may have been assessed by Officer B solely because they did meet the criteria and were thereby used as a means of hiding other fraudulently granted visas.

25. On the basis of the material available to me (and to the applicant), I am satisfied that none of these alternative explanations apply to the processing of the applicant’s visa. I am satisfied that the facts and matters described in paragraph 11, 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 to 20 above, it appears clear to me that the applicant did not provide all the vital documents at the time and that, on the basis of the visa application as lodged, the visa if properly processed would not have been granted. I would also observe that, in my view, the supplementary material referred to in paragraphs 17 and 19 above would make the grant even less likely.

27. When I take into account the fact that the visa was granted within the space of four days from application with the inadequacies as to information and documents discussed above, and when that visa has been processed as described in paragraph 11, I am satisfied that there is a reasonable suspicion that the applicant 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 made submissions as to facts and matters to which I should have regard in the exercise of the discretion. These will be discussed in terms of the relevant factors I am required to take into account.

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 9 April 2017 is the holder of a subclass TU 500 student visa. His representative submitted that the applicant was a genuine student who had spent his inheritance on this opportunity and that he now had an Australian de facto partner and a son in Australia. I give some weight to the studies and the money expended in the pursuit of them in favour of the applicant. The claim that he has spent his inheritance is not supported by any documentary material and I give that matter little weight. As the applicant was well aware, a subclass TU 500 visa is a temporary visa and the entry into a domestic relationship must have been done in the full understanding that he eventually would return to Nigeria.

32. I have considered the extent of the applicant’s compliance with his Visa conditions. In his submission, he claims that he has demonstrated that he is a genuine student by undertaking his studies until cancellation, he was working within the 8105 work limitation, he has been maintaining his health insurance and continues to meet the relevant public interest criteria. There is nothing to suggest otherwise and I give this factor some 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 submits that he and his family have spent considerable money to send him here to study and that he will suffer considerable shame if he goes home having not completed his studies and under the shadow of an accusation of fraudulent conduct. He also submits that he has an Australian citizen partner and a child: the child deserves to grow up with his father, and his partner deserves to be with the applicant. He contends that it is “out of the question” for her and the child to go to Nigeria. The applicant and the partner intend to apply for a partner visa. I accept that the cancellation of the visa may result in some hardship for the applicant and his family in Nigeria but note that there is very little in the way of documentary material to support his claims of financial or psychological hardship. The email from his uncle to his representative suggests that he has a very good job waiting for him in Nigeria. In respect of the situation of the partner and child, I accept that some financial and emotional hardship may be attached to the cancellation of the visa, but again note that it must, at all times, have been clear (at least to the applicant and his partner) that the terms of his visa necessarily entailed an eventual return to Nigeria. Accordingly, while I give some weight to this factor, the formation of a domestic relationship in Australia cannot preclude the ordinary operation of a temporary visa.

1. I have considered the circumstances in which the ground for cancellation arose. The applicant’s submission places considerable emphasis on the fact that the ground for cancellation arose out of the conduct of another person, in which the applicant had no involvement and no reason to suspect. I was referred to the policy manual which provides that “as a general rule, a visa should not be cancelled where the circumstances in which the ground cancellation arose beyond the control of the visa holder.” The submission cites the example from schedule three criterion 3004(c): “if a migration agent has been deregistered, it may be reasonable to find that negligent action by the agent that has affected the applicant was a circumstance beyond the applicant’s control.” In the absence of any evidence to the contrary, I accept that the swift assessment and approval of the applicant’s visa application by a party seeking to further the fraudulent purpose was a factor beyond his knowledge and control. Against this I balance my finding that, but for the fraudulent conduct, the visa would not have been granted on the basis of the information in the application or even on the basis of the later material provided to the Tribunal.

2. There is no indication of any adverse behaviour towards the department. I give this a degree of weight in his favour.

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

4. 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 in applying 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. I have taken all of these legal consequences into account and have given them some weight in the applicant’s favour.

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

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 of the fraudulent conduct of the departmental employee. In the applicant’s favour I give the most significant weight to his compliance with his visa conditions and the hardship that may be entailed to his partner and child from the cancellation.

7. The fact that a visa may have been granted as a result of fraudulent conduct, whether of the applicant or another person, is a serious matter going to the integrity of the immigration system. In this matter, as noted throughout this decision, there remain significant gaps in the material required of the applicant, and indeed further questions arise, in order for the visa properly to be granted. The integrity of the system cannot be said to be secured merely by a demonstration of substantial compliance once the applicant is onshore. This is particularly the case where the applicant remains onshore and the material needed to assess the genuine temporary entry component, and other integrity considerations, remains unmet.

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

   DECISION

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

   James Lambie
   Senior Member