IBEH (Migration)

[2019] AATA 648

IBEH (Migration) [2019] AATA 648 (26 February 2019)

ARTICLE I.    DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BARTHLOMEW CHIBUIKE IBEH

CASE NUMBER:  1724942

HOME AFFAIRS REFERENCE(S):           BCC2017/2968842

MEMBER:Antoinette Younes

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 5:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – corrupt conduct by Departmental officer – established assessment processes – failed to undertake relevant checks – visa would not have been granted had the fraud not occurred – applicant not directly involved in the fraud – consideration of discretion – genuine student – legal obligation to ensure information in visa application was true and correct – potential hardship in not being able to complete studies in Australia – deficiencies in application – integrity of migration programme – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 2, cl 500.212

CASES
George v Rockett (1990) 170 CLR 104
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 12 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 cancellation 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. The applicant was represented in relation to the review by his registered migration agent.

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

   PROCEDURAL MATTERS

   Sections 375A and 376 certificates

4. The Departmental file contains information referring to investigations undertaken by the Department. Some of those documents were the subject of a s.375A certificate.

5. Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate.  If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.

6. The Tribunal liaised with the Department about the validity and scope of the s.375A certificate and on 19 February 2018, the Department revoked the s.375A certificate.

7. The Departmental file also contains two s.376 certificates dated 19 February 2018 and 17 April 2018. Section 376 of the Act provides that the Tribunal has discretion to disclose information or documents subject to a s.376 certificate if the Tribunal considers it appropriate having regard to any advice by the Secretary about the significance of the documents or information.

8. The Department provided the Tribunal with redacted versions of the relevant investigation reports. On 15 November 2018, following a request for access to written material, the Tribunal provided partial access to the material and explained its reasons for excluding a number of documents on the grounds of, amongst other things, being internal working documents and if released would likely prejudice the effectiveness of methods for assessing student visa applications, and Australian Privacy Principles (APP6) set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about other persons.

9. As discussed below, the Tribunal sent a s.359A letter in relation to the potentially adverse information.

   Departmental investigations

10. According to a document in the Departmental file titled ‘Visa Cancellation Referral Report dated 10 August 2017 by the Australian Border Force (ABF)[1], the Department identified a link between offshore nationals engaging in criminal activity and visas granted by a Department officer working at the Australia High Commission in Pretoria (AHC) in Pretoria. This led to an investigation which commenced in early 2017.

    [1] This was provided to the applicant subsequent to the access request.

11. The investigation found that there was corrupt conduct by Locally Engaged Staff (LES) in the office of the AHC in processing student visas. This conduct was said to involve LES ‘bypassing’ the mandatory allocation of cases through the Department’s work management system and granting student visas to Nigerian applicants, who were identified as high risk, without following the established assessment processes that would have been applied to Nigerian applicants as part of Department risk profiling. These processes involve a range of additional assessments which included a direction to ‘check employment and education documents for any evidence of fraud’. This was one of several checks specified in a three page assessment direction, being the ‘Student Visa Assessment Methodology’ which is referred to in and attached to the visa Cancellation Referral Report. It is noted that money was paid to LES by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.

12. There are two reports in relation to each Departmental officer. Those reports summarise the investigations undertaken and analyse a number of visa applications of Nigerian students that were approved by the LES. Relevantly, the applicant’s visa is one of the applications identified by the Department as being granted by the corrupt conduct of the LES.  The applicant was assessed as a ‘high risk’ client based on his Nigerian nationality.

13. The investigations revealed that one of the LES was in receipt of multiple payments from a third party based in Australia to facilitate the grant of visas to applicants, such as the applicant.  Examination of the Department’s assessment notes show the LES did not attempt to check the veracity of a number of claims made by the applicant including past employment or education claims (relate to cl.500.212), which is contrary to mandatory procedural requirements. Given the deficiencies in the application, the referral was made on the basis that the applicant’s visa should not have been granted and there was sufficient evidence that his visa had been obtained as a result of the fraudulent conduct of the LES.

14. The Department also undertook a review of a number of the affected applications through an experienced senior officer to assess whether the visa holders would have satisfied the student visa requirements. The applicant’s application was one of those reviewed. A Departmental officer conducted an independent assessment and concluded that there were deficiencies in the information provided and that meant that the criteria were not met.

15. In the applicant’s case, the investigation identified that the LES granted the visa in circumstances where the officer was not authorised to process such a case and where the officer failed to apply the mandatory guidelines for visa assessment, including rigorous assessments for cases flagged as high risk. The investigation revealed that the LES did not attempt to check the veracity of either the employment or the past education claims made by the applicant and that this was contrary to the mandatory procedural requirements.

    Section 359A letter

16. On 15 November 2018, the Tribunal wrote to the applicant referring to information arising from the material provided under s.362A, and informing of the particulars as follows:

    According to the Referral to the General Cancellations Network Cancellation Consideration document (f.1-5 of Department file BCC2017/2968842), 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.5-66 of Department file BCC2017/2968842 f.37-69 of Tribunal file 1724942), the visa would not have been granted.

    Hearing invitation

17. On 1 November 2018, the Tribunal sent to the applicant an invitation to attend a hearing scheduled at 10.30 am on 10 December 2018.  The Tribunal advised the applicant that the Tribunal has considered the material before it and was unable to make a favourable decision on that information alone.  The Tribunal did not receive a response to the hearing invitation letter.

18. As discussed earlier, on 15 November 2018, the Tribunal sent to the applicant a s.359A letter, the response to which was due on 29 November 2018. The Tribunal advised, amongst other things, that if the applicant cannot provide a response by 29 November 2018, he may ask for an extension of time which must be received before 29 November 2018. The Tribunal indicated that if a response to the letter is not received within the period allowed or as extended, the applicant would lose any entitlement he might have under the Act to appear before the Tribunal to give evidence and present arguments.  The Tribunal did not receive a response to the s.359A letter.

19. As the Tribunal did not receive a response to the s.359A letter by 29 November 2018 and a request for extension of time was not made by 29 November 2018, the applicant lost the entitlement to give evidence and present arguments. Accordingly, the scheduled hearing on 10 December 2018 was cancelled.

20. On 6 December 2018, the Tribunal wrote to the applicant to advise him that the hearing has been cancelled for the above reasons. On 7 December 2018, the Tribunal received correspondence from the representative acting for the applicant.  The Tribunal wrote to the applicant on 10 December 2018 and gave him a further opportunity to provide submissions by 14 December 2018. The Tribunal has received further material which will be discussed throughout the decision.

21. The Tribunal is satisfied that it has given the applicant a fair and reasonable opportunity to appear before the Tribunal to give evidence and present arguments. In circumstances where the applicant did not respond to the s.359A letter or did not seek an extension of time prior to the due date of the s.359A response, the applicant has lost any entitlement to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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?

23. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied that 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).

24. In the present case, the ground in r.2.43(1)(o) is relevant. Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

25. On 25 August 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) on the basis that:

    ·On 15 February 2017, the applicant lodged a subclass 500 visa electronically using the Departmental online processing system. The applicant was granted the visa on 23 February 2017 by the Department’s Post in Pretoria, South Africa.  On 8 April 2017, the applicant arrived in Australia as the holder of the subclass 500 student visa.

    ·The Department conducted an investigation into the circumstances leading to the grant of the applicant’s subclass 500 student visa. The investigation revealed that a Departmental employee may have acted improperly and granted the applicant the visa. It appears that the visa would not have been granted if not for the reasonable suspicion of fraudulent conduct. That conduct is not limited to conduct of the applicant.

26. Those grounds were also referred to in the delegate’s decision record provided in support of the application for review.

27. In his response of 29 August 2017, the applicant indicated that:

    ·There are inconsistencies in relation to the application ID number and the file number provided to him in the NOITCC letter of 25 August 2017 and consequently it is arguable whether the Departmental investigation relates to his application.

    ·He denies the allegation that his visa would not have been granted but for the fraudulent conduct of the Departmental employee. He is not a party to any such allegations and he obtained his visa subsequent to lodging a visa application that met all the requirements. He did not aid or abet in any unlawful conduct and therefore his visa should not be cancelled. Cancellation in those circumstances would be unfair, unjust and contrary to the rules of justice and the rule of law. The allegations do not particularise the specific nature of the alleged fraudulent conduct that occurred. The cancellation of his visa is based on mere suspicion and not any proven or established facts. He does not know or have any direct contact with any Departmental employee. The cancellation of his visa under these circumstances would mean that the Minister is unfairly punishing him on the suspected ground of fraudulent conduct of another person who is not within his control or influence.

    ·Section 116 (1)(g) provides the Minister with wide discretionary powers to cancel a visa on reasonable suspicion of the fraudulent conduct of any person so it is irrelevant who committed the fraud. This suggests that he is an innocent person and he has been punished for the wrongdoing of someone else. His visa was validly granted and based on his own circumstances.

    ·He categorically denies that he was aware of any fraudulent conduct on the part of anyone.  His visa should not be cancelled because the visa was granted on the basis of him meeting all the relevant criteria.

28. In support of those submissions, the applicant provided copies of documents namely, document from the Australian Academy of Commerce dated 28 August 2017 confirming that the applicant is a full-time student with a current attendance rate of 93.33%, and confirmation of enrolments in the courses of Certificate IV and Diploma in Marketing and Communication, all of which to be completed by 5 July 2020.

29. In a statutory declaration to the Tribunal, dated 13 December 2018, the applicant stated:

    ·He applied for the student visa in the same way as many other thousands of students. He had a genuine reason to study. He had been working for several years and he was excited at the chance of further education to secure a high paying management position. He was put in contact with Mr X by email in the same way as many other students in Australia. He trusted his abilities because he was referred by Rev Father Henry, a respected man. He provided documents as requested and took his application seriously. He was granted the visa and began studying but one day he received the shocking news of the intention to cancel his visa. He travelled to Australia with the intention to study.

    ·Subsequent to the cancellation of his visa, he became unlawful and he had no idea what was going on but he knew that there were other persons in his situation from Nigeria. They were told that they had no visa and they were not allowed to work or study. He could not take a chance and do anything wrong so he ceased everything.

    ·He has not had a chance to complete his course and returning to Nigeria in these circumstances would have an adverse impact on him and his family. He does not have the heart to tell his father the bad news.

    ·His parents fear the worst and the ruined reputation they would have in the community for raising a son who has been deported from a country where he was intending to study. He cannot explain what has happened to his parents because it does not make sense.

    ·He understands that Mr X had been paying a case officer to approve visas. His lawyer has explained to him that there is ground to cancel his visa. A substantial amount of money will be wasted. Money that he has taken from his relatives and for which he has worked hard. He needs to maintain his parents’ reputation and have his innocence proven.

30. In submissions to the Tribunal dated 13 December 2018, the representative noted the following points:

    ·The applicant was unaware and uninvolved in the fraudulent conduct that has been detailed in available documents. However, it is understood and accepted that the Tribunal might find that the ground for cancellation exists on the basis of having a suspicion that the applicant’s visa was obtained as a result of fraudulent conduct and it is not necessary to demonstrate that the applicant himself was involved in any such fraudulent conduct.

    ·The applicant completed his secondary school education in 2007 and in 2012 he graduated in a Bachelor of Science (majoring in industrial physics). His studies included geophysics, medical physics, nuclear physics, physics electronics, econo–physics, mechanical physics, astronomical physics, and biophysics.

    ·Due to limited employment opportunities in Nigeria and prioritising specialist qualification holders, the applicant was unable to find employment for the following 14 months. The applicant began to widen his field of prospective employment and even considered teaching.

    ·In October 2013, he was offered a teaching position at New Laetare group of schools, a private college and they were impressed with his skills. The applicant taught for three days a week and spent the other two days involving himself in extra curriculum activities such as the science club.

    ·The applicant set up science week at the college which became successful. The applicant and his employer agreed for him to obtain marketing qualifications so that they could be comfortable in establishing a relevant department.

    ·The applicant considered local courses but he was concerned about the quality of Nigerian schools. The applicant’s cousin who was his financial sponsor for the student visa played an important role in his career decisions. The cousin recommended the option of studying in Australia.

    ·In October 2016, the applicant’s cousin and father confided in their local parish priest, Rev Father Henry, about contacts in Australia who could assist. Rev Father Henry agreed to make enquiries. Three weeks later, the applicant contacted Rev Father Henry who advised that he had been put into contact with Mr X who resided in Australia and had experience in the area.

    ·The applicant was asked to provide Rev Father Henry with his Gmail account details in order to communicate with Mr X to prepare the visa. The applicant was not aware that he had an ImmiAccount created for him and he was never asked to review any application forms prior to lodgement.

    ·The applicant was never asked to sign any documents and was relying on Mr X to guide him over the requirements. Subsequent to accessing documents, the applicant has become aware of several mistakes in the online application, including the nondisclosure of the Bachelor of Science degree and the statement that the applicant had not been offered a job on his return.

    ·Two weeks after the applicant began to prepare documents, he was asked to pay US $10,000 to cover tuition fee deposit, health insurance, lodgement fees, and medical examinations. The applicant was under the impression that the majority of the fees would go towards his tuition fees but it was after his arrival in Australia that he realised that only a deposit had been paid.

    ·He took all reasonable steps to ensure his application was prepared correctly and all facts and circumstances were disclosed. The applicant never had any direct contact with Mr X but he understands that Rev Father Henry has had some contact with him from time to time.

1. To the Tribunal, the applicant provided copies of the following:

   ·Reference from Michael Emeh dated 28 November 2018 noting that Mr Emeh is the financial supporter of the applicant in his Australian studies and that the applicant has been relying on him for regular payment of tuition and living expenses. Mr Emeh advised that the applicant has been offered a senior role with his previous employer on the basis of obtaining qualifications in communications. He further stated that the applicant has spent a significant amount of money in Australia and to return to Nigeria with no qualifications would be disastrous for him and the knowledge of the cancellation of his visa has caused a deterioration in his parents’ ill health.

   ·Tax receipts issued by the Australian Academy of Commerce dated 17 October 2017 and 16 November 2018 concerning tuition fee payments for the course of Certificate IV in Marketing and Communication.

   ·Hand-written receipts for rent and tuition, some of which are undated.

   ·Document from the IMO State University, Nigeria for 2011/2012 referring to the applicant’s qualifications, an award of second class honours (lower division) in the Bachelor of Science degree in Industrial Physics.

   ·Medical notes/reports for AMAKA IBEH (53-year-old female) dated 23 November 2018 referring to her suffering from diabetes type B and rheumatoid arthritis.

   ·Medical notes/reports for BATHLOMEW IBEH (63-year-old male) dated 23 November 2018 referring to him suffering from blood pressure, partial stroke, and kidney dysfunction.

   ·Letter from the NEW LAETARE SCHOOLS, dated 28 November 2018, referring to the applicant who was employed as an academic staff member between October 2013 until April 2017, teaching physics and being head of the science club.

   ·Australian Academy of Commerce letter dated 4 December 2018 confirming that the applicant is a full-time student in the course of Certificate IV in Marketing and Communication, commencing on 9 April 2018 and finishing on 7 April 2019. The letter attaches the applicant’s results showing that he has completed nine units out of the attempted nine and that he needs 12 units in order to complete his qualifications.

   ·Bridging Visa grants on 13 October 2017 and 14 November 2017.

   ·Pamphlets relating to participation in Christian related activities, diplomas of theology in the name of AMAKA IBEH, leadership training certificate in the name of AMAKA IBEH, ordination certificate in the name of AMAKA IBEH, certificate of membership relating to Bishop Bartholomew IBEH.

   FINDINGS AND REASONS

2. The applicant has argued that the NOITCC contained errors in referring to File No BCC2017/2968842 and Application ID C6ZR3JX8F.

3. The evidence before the Tribunal is that Departmental file number BCC2017/2968842 which is the cancellation file number is the correct file number referring to the applicant.  It appears to the Tribunal that the applicant had assumed that BCC2017/2968842 referred to the student visa application despite the fact that the NOITCC noted “In reply please quote:…”, similarly with the Application ID C6ZR3JX8F.  On the evidence before it, the Tribunal is satisfied that the applicant is the correct identified person.  The Tribunal is satisfied that the NOITCC is valid and it provided the applicant with relevant details about the issues.

4. The prescribed ground identified is the ground set out in r.2.43(1)(o) which requires that the decision maker must reasonably suspect that the visa, which is the subject of cancellation, has been obtained as a result of the fraudulent conduct of any person. The term ‘reasonably suspects’ is not defined in the Act or the Regulations but its meaning has been judicially considered in the context of r.2.43(1)(o) and s.189 of the Act.

5. It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient[2] A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[3] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[4] 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.[5]  The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[6] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[7] 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.[8]

   [2] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).

   [3] 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

   [4] Sun v Minister for Immigration and Border Protection at [48] (per Flick and Rangiah JJ

   [5] Ibid at [48] (per Flick and Rangiah JJ).

   [6] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18] (per Judge Driver)

   [7] Ibid

   [8] 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]

6. Fraudulent conduct is not defined in the Act or Regulations. The ordinary English meaning of ‘fraud’ as set out in the Macquarie Dictionary (online edition) as: [D]eceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage. This is consistent with the PAM3 which also adopts the Macquarie Dictionary definition and states that ‘fraudulent conduct’ is an “[A]dvantage 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”.[9]

   [9] Procedures Advice Manual - PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’

7. Regulation 2.43(1)(o) requires that the decision maker must reasonably suspect that the visa has been obtained as a result of the fraudulent conduct. This phrase is not defined in the Act or Regulations but adopting the plain and ordinary meaning of the phrase would suggest that a ‘causal connection’ is required. That is, but for the fraud the visa applicant would not have obtained the visa. This is consistent with Departmental policy. Relevantly, PAM3 provides that “[I]t 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”.[10]

   [10] Ibid

8. Regulation 2.43(1)(o) refers to  fraudulent conduct by ‘any person’. As such, it is not necessary for the Tribunal to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct: Patel at [23] (per Bromberg J).

9. The Departmental file contains information indicating that there was fraudulent conduct in respect of the grant of the applicant’s student visa. The information indicates that despite being flagged as a high risk applicant, and without the visa application being allocated to the employee involved in the fraudulent conduct, the employee acted without authority and granted the visa. The evidence is that the relevant employee did not apply mandatory guidelines for visa assessment which included the rigorous assessment of cases flagged as “high risk” on the basis of the applicant’s Nigerian nationality. The evidence before the Tribunal indicates that the employee failed to undertake checks to verify the veracity of the applicant’s employment record and past education. This was contrary to mandatory procedural requirements.

10. The Tribunal observes that in submissions to the Tribunal, the applicant has now advised that subsequent to accessing documents, he became aware of several mistakes in the online application, including the nondisclosure of the Bachelor of Science degree and the statement that the applicant had not been offered a job on his return.  The Tribunal is satisfied that this supports a finding that the Departmental officer did not check the veracity of the applicant’s employment or past education claims. The evidence before the Tribunal is that the relevant employee who granted the visa acted dishonestly, recklessly, or negligently and failed to give regard to mandatory procedural and legal requirements. The evidence before the Tribunal is that senior and highly skilled Departmental officers conducted the relevant investigations and the Tribunal gives significant weight to their findings confirming that the applicant’s visa was granted as a result of the fraudulent conduct of the relevant employee.

11. The Tribunal accepts and finds that the applicant is one of 21 Nigerian nationals who were granted student visas as a result of the corrupt conduct by a Departmental officer.  The Tribunal further accepts 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.  The Tribunal accepts that the applicant was flagged as a ‘high-risk’ client on the basis of his Nigerian nationality and that his visa was granted in a manner that did not comply with mandatory procedural requirements for ‘high-risk’ clients.

12. The Tribunal accepts that the deficiencies in the Departmental officer’s processing of the applicant’s visa application indicated that without the conduct of the Departmental officer, as  detailed in the Visa Cancellation Referral Report (f.5-66 of Department file BCC2017/2968842 f.37-69 of Tribunal file 1724942), the visa would not have been granted. 

13. The Tribunal finds that the conduct of the Departmental officer was fraudulent in that it was, amongst other things, deceitful, dishonest, breached confidence and trust, reckless, and a misuse of position.

14. The applicant has contended that he did not know, or was involved in any way in the conduct of the Departmental officer. Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. The Tribunal has some doubts about the applicant’s contentions but the purposes of r.2.43(1)(o), the Tribunal does not have to be satisfied that the applicant was himself involved in the fraudulent conduct. Accordingly, the Tribunal finds that the applicant’s visa was granted as a result of the fraudulent conduct of the Departmental officer and consequently the requirements of r.2.43(1)(o) are met.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(o) 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

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. The applicant arrived in Australia as the holder of a student visa subclass 500. The purpose of the visa is to allow the holder to undertake studies in Australia. Although the visa permits the holder to work for limited hours, its primary purpose is to enable the holder to study in Australia.

18. In submissions to the Tribunal dated 13 December 2018, the representative noted that:

    ·The applicant entered Australia for the purpose of completing a Diploma of Marketing and Communication at the Australian Academy of Commerce. The applicant maintained his enrolment in the registered course during his study in Australia and only ceased studying as a result of the Departmental actions to cancel his visa and issue him with a bridging visa without permission to study.

    ·The applicant complied with the visa conditions and as a result he was forced to defer his studies until he was granted permission. The applicant is due to complete his course on 7 April 2019 and would be commencing a diploma course subsequently. If the applicant’s visa were to be cancelled, the applicant would be forced to depart Australia without having completed any qualifications.

19. The fact that the applicant was granted the visa as a result of the fraudulent conduct of the Departmental officer who did not undertake the mandatory checks such as past employment and education raises doubts about whether or not the applicant would have met the relevant visa criteria, including but not limited to, the genuine temporary entrant (GTE) requirement which is essentially an integrity measure to ensure that the student visa program is used as intended.

20. The GTE requirement provides a useful way to help identify those applicants who are using the student visa program for motives other than gaining a quality education. An applicant needs to show that he/she is coming to Australia temporarily to gain a quality education. The GTE requirement is not designed to exclude those students who, after studying in Australia, go on to develop the skills required by the Australian labour market and apply to obtain permanent residence. When assessing whether an applicant is a genuine temporary entrant, the decision-maker considers their circumstances as a whole. Ministerial Direction 69 is relevant.

21. In its Preamble, Ministerial Direction 69 states:

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a. the applicant’s circumstances; and

    b. the applicant’s immigration history; and

    c. if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and

    d. any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

22. Although Ministerial Direction 69 is not intended to be used as a checklist.  A range of factors are taken into account including circumstances in home country (or country of residence), potential circumstances in Australia, and any other factors that could be relevant to the assessment.

23. For the stated reasons, the Tribunal has found that in the applicant’s case, mandatory assessment procedures were not followed. The applicant has acknowledged that he has now become aware that the student visa application did not disclose the Bachelor of Science degree and that the applicant had not been offered a job on his return. The fact that the application was not assessed in accordance with established guidelines means that process lacked the relevant scrutiny, including the proper consideration of GTE.  Given that scenario and on the available evidence, the Tribunal is not satisfied that the purpose of the applicant’s travel and stay in Australia was to study.

24. The Tribunal accepts the evidence that the applicant has been studying in Australia and that he ceased studying for a period of time due to the cancellation of the student visa as well as the imposition of no study condition on the granted BVE of 20 October 2017.  He re-commend studying subsequent to the grant of the BE on 14 November 2017, which removed the no study condition. The Tribunal acknowledges that his current studies could be evidence of the intention to study, however this does not mean that it is conclusive evidence of his intentions, which for the identified reasons were not assessed in accordance with established procedures.

25. The Tribunal has taken into consideration the fact that the applicant is currently enrolled in a course of Certificate IV in Marketing and Communication which finishes on 7 April 2019 and that he intends to undertake a Diploma course in the same field.  However, given the Tribunal’s lack of satisfaction in relation to his intention to travel and stay in Australia, the Tribunal does not consider those enrolments to mean that the applicant has a compelling need to remain in Australia

26. The Tribunal gives weight to this consideration in favour of cancellation.

    ·             the extent of compliance with visa conditions

27. In response to the NOITCC, the applicant stated that he has complied with all visa conditions and he has been a law-abiding citizen. In submissions to the Tribunal dated 13 December 2018, the representative noted that:

    ·The applicant has at all times complied with his visa conditions. He took immediate actions to regularise his status following the decision by the Department to cancel his visa. He ceased all employment and study until such time that those rights were reinstated as a result of being granted bridging visas.

    ·The applicant’s visa was cancelled on 12 October 2017. On 13 October 2017 he applied for a bridging Visa E which was granted on 20 October 2017. On 9 November 2017, he lodged an application for study rights and on 14 November 2017 and another bridging Visa E was granted with study rights.

28. There is no evidence before the Tribunal relating to non-compliance.

29. The Tribunal gives this consideration weight in the applicant’s favour.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30. The applicant has requested the Tribunal to exercise discretion on the basis of compassion and the compelling reasons of his circumstances.

31. In response to the NOITCC, the applicant stated that he has been studying since his arrival in Australia and he is now supporting his family who would suffer in case of the cancellation or if he has to withdraw from the course which he has commenced. The Tribunal is of the view that the primary purpose of the student visa is to study in Australia and not work. The holder of a student visa is permitted to work a prescribed number of hours but work is not the primary purpose of a student visa. The Australian authorities grant work-related visas to those whose primary intention is to work in Australia. So it is difficult for the Tribunal to accept the applicant’s contention that he is now supporting his family financially and cancellation would cause them hardship. In order to be granted the student visa, the applicant amongst other things, would have had to provide evidence about his financial capacity to undertake studies in Australia, that is without having to work to support himself or anyone else.

32. The Tribunal gives little weight to those submissions.  Similarly, the Tribunal gives little weight to the submissions of 13 December 2018 that the applicant has spent a considerable amount of money and returning to Nigeria without achieving what he had intended to in coming to Australia would be wasteful. The Tribunal had expressed doubts about the applicant’s intention to travel to and stay in Australia and it is difficult to see how in those circumstances those submissions are persuasive.

1. The applicant has submitted that he has integrated into the Australian Society and he has adapted into the Australian way of life and academic systems. He has hopes for the future in Australia. The applicant arrived in Australia approximately two years ago. The Tribunal does not consider this period of time as being persuasive evidence of integration or adaptation into the Australian way of life. The Tribunal gives no weight to those submissions in the applicant’s favour.

2. In submissions to the Tribunal dated 13 December 2018, the representative noted that:

   ·The applicant is an innocent victim and when his visa was cancelled, he became extremely fearful of his personal safety and well-being as a result of becoming unlawful in Australia. The compliance section of the Department did not process his bridging visa immediately and during this time another student was detained and placed in detention which caused a significant amount of psychological and emotional hardship as well as distrust towards the Australian authorities. Since the cancellation of the visa, the applicant and his family as well as his sponsor have been forced to spend their time and money fighting the review application and live with the uncertainty.

   ·When the applicant reported the cancellation to his family, this caused a significant feud where the applicant was accused of not complying with his studies in Australia. The applicant was eager to clear his name. The family contacted the Rev Father Henry and pleaded to speak with Mr X[11] to discuss what had happened in the course of the lodgement of the visa. The applicant contacted his family on 14 October 2017 and advised them that he was unlawful as a result of the cancellation and could be liable for detention and deportation. His father was admitted to hospital on 15 October 2017 after losing consciousness. The applicant’s father was discharged from hospital as supported by medical evidence provided.

   ·The applicant’s mother was admitted to hospital in January 2018 as a result of similar medical conditions, as supported by medical evidence provided.  The applicant’s father holds several positions within the Christian community. He is a Minister of God. Prior to becoming ill, the applicant’s father also held important roles in Christian and other organisations.  The applicant’s family has come under the spotlight in the last two years as a result of the father’s medical conditions and knowledge of the applicant’s visa issues in Australia. The family has reassured the community and the personal contacts that this was due to another person’s wrongdoing.

   ·If the applicant is forced to return to Nigeria having not completed his studies, the wider community will look down on the family and reflect the fraudulent actions of others onto the family.

   ·Although the applicant has a degree, the Tribunal should not assume that the applicant would be able to obtain employment on this basis. The applicant does not possess any experience in this field and with a significant gap between the completion of his course and given his age, he would have greater difficulties in securing employment in his field. The applicant has changed his career path and has been offered employment based on the proposed completion of his marketing qualifications. The applicant’s previous role as a part-time teacher and head of science club have been field since his departure and he cannot expect to resume this position should he be forced to return. The college has provided an updated letter confirming that they cannot guarantee a position for him should he return in the future.

   [11] Suspected Australian-based financier who made payments to the LES.

3. The applicant provided documents indicating that his parents suffer from various medical conditions. 

4. The Tribunal accepts that both parents have medical issues which could be impacted in case of the cancellation.  The Tribunal accepts that the parents are involved in Christian-related activities, and that the family experienced or could experience adverse reactions from their community.  The Tribunal is satisfied that the visa cancellation would have a negative financial, psychological and emotional impact on the applicant and his family. The Tribunal observes that the applicant’s legal costs were incurred subsequent to the cancellation of the visa and as he was put on notice of the potential that the visa would be cancelled, it is reasonable to suggest that he would have known that money could be wasted as he may not be successful. The Tribunal does not consider those consequences to mean that the visa should not be cancelled.

5. The applicant has provided evidence that he has been offered a senior role with his former employer on the basis of his completion of qualifications in Australia.  The Tribunal accepts this as plausible and that the applicant could encounter employment difficulties in Nigeria.  However, the evidence is that the applicant was employed and although he cannot expect to resume this position in case of his return, he claims to have a degree so his employment opportunities are enhanced.

6. Unless the applicant makes other arrangements, he could become unlawful and liable for detention.  He would also have difficulties in obtaining any further Australian visas.  Given that those are intended legislative consequences, the Tribunal does not consider them to amount to hardship in his case.

7. If his visa is cancelled, the applicant would not be in a position to complete the course he is currently undertaking, or commence in the Diploma course.  The Tribunal appreciates the significance of this outcome which would mean that he has lost the opportunity to complete his studies in Australia in the current stipulated timeframe. However, the applicant could reapply offshore for a student visa and although there might be difficulties in being granted the visa, that does not mean that it is impossible for him not to finish his studies in Australia. The Tribunal is of the view that although this factor amounts to hardship, it does not weigh strongly against cancellation.

8. The Tribunal has carefully considered the applicant’s circumstances and without intending to sound harsh, the Tribunal recognises that cancellation has adverse impacts on the applicant and his family, however, the Tribunal does not consider those impacts to weigh heavily against cancellation. 

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

9. PAM3 requires the Tribunal to consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the ground for cancellation existing. The guidelines state that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

10. The applicant has consistently contended that he was not aware of, or involved in the fraud.  He has maintained that he had no involvement or knowledge of the fraudulent conduct.  He categorically denies awareness of any fraudulent conduct by any person. He noted that it would be unjust, punitive and harsh to cancel his visa in those circumstances. 

11. The applicant claimed that he was put in contact with Mr X by email in the same way as many other students in Australia. He trusted his abilities because he was referred by Rev Father Henry, a respected man. He provided documents as requested and took his application seriously. The Tribunal recognises that the applicant’s visa was cancelled under s.116(1)(g) but the applicant’s contentions must be considered in the context of s. 99 of the Act which provides that:

    Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

12. The Tribunal has some doubts about the applicant’s contentions but in any event, the applicant was under a legal obligation to ensure that all information provided in the visa application was true and correct. The Tribunal is not entirely persuaded by his explanations that he trusted Mr X because he was referred by Rev Father Henry. Even if the Tribunal were to accept that the applicant was not involved in the fraud, the fact is incorrect information was provided in the application and in the context of s.99, the applicant is responsible. The Tribunal does not accept that this was beyond the applicant’s control. On his own evidence, the applicant is tertiary qualified, capable of understanding the significance of provision of correct information.

13. Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. For the stated reasons, the Tribunal found that the applicant’s visa was granted as a result of the fraudulent conduct of the Departmental officer and consequently the requirements of r.2.43(1)(o) are met.

14. The cancellation scheme is not intended to be punitive but has a significant role in maintaining the integrity of migration programme.  It would be counterproductive for a system not to have integrity measures in place to ensure compliance and proper lawful processing of applications. Fraud is a serious and significant matter and the applicant has been granted the visa without the relevant application undergoing stringent checks designed to ensure that a visa is granted only if an applicant meets all the relevant criteria.  Cancelling a visa in those circumstances is not designed to punish the applicant but is about maintaining integrity.

15. The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

    ·past and present behaviour of the visa holder towards the department

16. The applicant has responded to the NOITCC and the Tribunal gives this aspect some weight in his favour.

    ·whether there would be consequential cancellations under s.140

17. There is no evidence of consequential cancellation under s.140.  The Tribunal gives this aspect neutral weight.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

18. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.

19. If the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention.  The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case, do not mean that the visa should not be cancelled.

20. The representative submitted that the legislative consequences are not intended to punish visa holders who are not found to have any involvement or knowledge of the fraudulent actions that result in the cancellation. As noted earlier, the Tribunal does not consider the cancellation scheme to be punitive in nature. The applicant’s visa was cancelled on the ground of s.116(1)(g), r.2.43(1)(o) which prescribe the ground for cancellation as that if the Minister suspects that the visa has been obtained as a result of the fraudulent conduct of any person. It is therefore evident that there need not be involvement or knowledge of the fraudulent actions.

21. The Tribunal gives no weight in favour of the applicant under this consideration.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

22. There is no evidence before the Tribunal that the cancellation of the visa would be in breach of Australia’s international obligations. This factor is therefore neutral and does not weigh in favour or against cancellation.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The subclass 500 student visa is a temporary visa so this factor is neutral and does not weigh in favour or against cancellation.

    ·any other relevant matters

24. There are no other matters relevant for consideration.

25. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. Even though the Tribunal had expressed some doubts about the extent of the applicant’s involvement, the Tribunal has proceeded on the basis that the applicant was not directly involved in the fraud. The outcome might have been the same in either case, however, the consequences would have been very different if the Tribunal had found that the applicant was directly involved in the fraud because, amongst other things, that would have a significant adverse impact on the applicant’s ability to ever be granted an Australian visa.

26. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer in not being able to complete his studies in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation. A corrupt Departmental officer granted the applicant the visa notwithstanding clear deficiencies in the application. Those matters go beyond the applicant’s personal circumstances and they have wider implications in maintaining the integrity of the migration programme.

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

    DECISION

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

    Antoinette Younes

    
    Senior Member