IHEKAOZOR (Migration)

[2019] AATA 649

IHEKAOZOR (Migration) [2019] AATA 649 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IFEANYI VICTOR IHEKAOZOR

CASE NUMBER:  1725450

HOME AFFAIRS REFERENCE(S):           BCC2017/3195659

MEMBER:Antoinette Younes

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2019 at 3:55pm

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
Odinkaeze (Migration) [2018] AATA 1295
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). The delegate cancelled the visa under s.116(1)(g). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. The applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages.  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.  The Department provided the Tribunal with redacted versions of the relevant investigation reports. On 17 December 2018, following a request for access to written material, the Tribunal provided partial access to the material, including those subject to the s.376 certificate. 

8. The Tribunal 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. 

   Departmental investigations

9. The Departmental documents provide details about investigations undertaken by the Department in relation to allegations of fraud.  In accordance with s.359AA, the Tribunal discussed relevant details with the applicant in the course of the hearing.

10. According to a document in the Departmental file titled ‘Visa Cancellation Referral Report dated 10 August 2017 by the Australian Border Force (ABF), 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 (AHC) in Pretoria, South Africa. This led to an investigation which commenced in early 2017. 

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 the Departmental 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’. 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 reports regarding investigations in relation to each Departmental officer. These reports summarise the investigation 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 as a result of the corrupt conduct of the LES.  The applicant was assessed as a ‘high risk’ client based on his Nigerian nationality.

13. According to the internal referral, 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 various claims made by the applicant, 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.

15. A Departmental officer conducted an independent assessment and concluded that, on the basis of information available including the documents provided in support of the application, the applicant failed to meet cl.500.212.  Relevantly, the officer noted that, amongst other things, the applicant did not provide sufficient evidence relating to matters such as employment or availability of similar courses in either South Africa or Nigeria. The English language test document provided was genuine but the bank statements provided by the applicant to evidence he had sufficient funds available, had not been verified. It was also noted that the authenticity of the health insurance document and education had not been confirmed.

16. In essence, the Departmental officer concluded that the applicant did not meet the criteria for the grant of the subclass 500 visa.

    Section 359A letter

17. On 17 December 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:               

    ·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.1-31 of Department file BCC2017/3195659 f.28-58 of Tribunal file 1725450), the visa would not have been granted.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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).

19. 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?

20. 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.

21. 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.

22. On 8 September 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) on the basis that:

    ·    On 3 April 2017, the applicant lodged a subclass 500 visa electronically using the Departmental online processing system. The applicant was granted the visa on 11 April 2017 by the Department’s Post in Pretoria, South Africa.  On 14 May 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.

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

24. On 11 September 2017, the applicant responded by email to the NOITCC as follows:

    ·He has no idea of any fraudulent conduct referred to in the notice. He has never been to Pretoria or the departmental office and he does not know any staff in that office. He applied for a student visa like any other person.

    ·He has never known the officer in Pretoria who had acted improperly. He provided his documents from Nigeria as was required by the Department.

    ·Since he came to Australia, he has been a law-abiding student and he has complied with all his visa conditions. He has paid his tuition fees (payment advice for $500 attached) when they were due. He has a good attendance record and he is a good student.

    ·If his visa were to be cancelled, this would lead to a disruption in his education and he has spent money on tuition and other expenses. The cancellation would also cause emotional and psychological breakdown, as well as disunity between him and his parents who are his sponsors. His father would disown him because his siblings are in different parts of the world studying and doing well.

    ·He is innocent and cancellation would wreck his life and his family. It would be unjust for him to bear the misdeed of something that he did not know about or took part in.

25. In a Statutory Declaration of 28 January 2018, the applicant stated:

    ·He finished his qualifications in 2008, obtaining a National Diploma in Business Administration. He came to Australia on 14 May 2017 as the holder of a student visa.

    ·He enrolled in an Advanced Diploma in Business at the Royal Institute of Technology, Brisbane. In term one, he studied three subjects but his studies were interrupted because of the cancellation of his visa. Subsequently he applied for review and has since been granted a bridging visa with no permission to study.

    ·He relocated to Sydney and subsequent to being granted permission to study, he searched for another advanced diploma but he was only able to find a course of a Diploma of Business at Duke College in Parramatta (documents from Duke College attached).  He has passed three subjects and once he completes the course, he is planning to enrol in an advanced diploma or a bachelor’s degree.  He plans to return to Nigeria to manage an import and export business.

26. In submissions to the Tribunal dated 28 January 2019, the representative argued:

    a)According to the investigation report, the second Departmental officer was questioned about “a selection of cases” where the officer agreed that they had “overlooked issues with applications”. There is no evidence about whether the applicant’s case was ever presented to the officer.

    b)The Departmental officer who granted the visa was a delegate of the Minister and had the authority to grant the student visa. Contrary to the assertions, the decision-maker applied all the required legal criteria, including application of policy which is within their discretion. In the Visa Cancellation Referral Report, the decision-maker claimed that they “did not scrutinise them too much” but some level of scrutiny was established by the investigators.

    c)PAM3 guidelines give discretion to decision-makers to decide the level of scrutiny applied in terms of checking employment and education claims. This is clear by the use of words such as “should be applied” and “may be applied”. This is supported by the wording of Ministerial Directions No 53 and 69, such as “may request additional information…may be appropriate“, demonstrating discretionary powers.

    d)There is no allegation that the applicant has ever paid to have his visa approved or that he had any involvement in criminal activity or fraud. There is no concrete evidence that the applicant was flagged as high risk. There is also no evidence that the Departmental officer failed to verify the applicant’s employment and education records. The applicant provided genuine documents and there are no allegations of the provision of bogus documents. His IELTS results, academic qualifications and work experience have not raised any concerns and the applicant continues to pursue studies in business.

    e)The applicant’s visa was cancelled arbitrarily without proper attention to his particular circumstances. The applicant meets all the relevant criteria and he would have been granted the visa. The Department has not demonstrated that the visa would not have been granted had the fraud not occurred. There was no evidence of a causal link between any fraud in the Australian High Commission in Pretoria and the grant of the visa. It is the responsibility of the Department to perform their investigations and present “concrete evidence of causation”.

    f)The Tribunal decision of Odinkaese[1] (differently constituted) should be followed particularly the observations that while “the circumstances surrounding the granting of Mr Odinkaese’s student Visa are suspicious, there must be some evidence on which to base a suspicion of the necessary causal link. Mere surmise or conjecture simply because of the other cases is not sufficient to establish a reasonable suspicion…”[2]. There are no grounds to cancel the applicant’s visa.

    [1] Odinkaeze (Migration) [2018] AATA 1295 (17 May 2018).

    [2] Ibid, paragraph 52(7).

27. In the course of the hearing, the applicant reiterated that he was not involved in, or was aware of any fraud associated with the grant of his visa. He gave evidence that he applied for the visa whilst he was in Nigeria. He explained that since his childhood, he had wanted to travel overseas including travelling to Australia and Canada. He stated that after completing his secondary schooling, he commenced an apprenticeship and he was later promoted to a management position in the same business where he remained for approximately eight years. He completed a Diploma of Business Administration course part-time and he finished that course around the end of 2008. He returned to his former employer in a role which involved marketing and he was in that role until 2011/2012. He stated that he established a small business but that was unsuccessful. He managed that business until his arrival in Australia in 2017.

28. The Tribunal asked the applicant how he obtained his subclass 500 visa and he explained to the Tribunal that his brother in Nigeria had a friend in Australia by the name of Mr Adebago who made all the arrangements lodged the application. The Tribunal asked the applicant about Mr Adebago’s first name and he stated that he did not know. He also did not know whether Mr Adebago was a migration agent or not. The Tribunal queried the applicant about the reasons for providing personal documents to somebody whom he did not know and he stated his brother knew him. The Tribunal asked him if he saw or signed a draft application form and he stated he never signed any application form. He stated that he never paid Mr Adebago any money and as his brother made the arrangements with Mr Adebago, he did not know if his brother had paid him. He stated that he did not know anything about how these things happened.

29. In submissions to the Tribunal, the representative argued that the applicant does have health insurance now but the Department did not check it. The Tribunal pointed out that indeed is the case. The Tribunal referred to the assessments undertaken by the senior officer, copies of which had been provided to the applicant subsequent to the request for access to documents, and indicated that the health insurance policy document provided was not verified, supporting a finding that established procedures had not been followed. The Tribunal explained to the representative that whether the applicant meets the criteria now is not entirely relevant; the issue relates to whether at the time of the visa grant, appropriate procedures had been followed by the relevant officer to ensure that the applicant met all relevant criteria at that time. The Tribunal pointed out that the independent assessment showed, amongst other things, that the applicant did not meet the Genuine Temporary Entrant (GTE) requirement.

30. The Tribunal was not impressed with the applicant; the Tribunal found the applicant vague and evasive. The Tribunal finds it implausible that the applicant did not know any details about the application process such as documents provided or any other relevant detail.

31. Although the Tribunal has concerns about the applicant’s credibility, these are not sufficient to reach the required degree of satisfaction to make a finding that the applicant was himself involved in any fraudulent conduct.

1. The Tribunal will therefore proceed to assess the case on the basis that the applicant was not himself involved in the claimed fraud.

   Regulation 2.43(1)(o)

2. 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.

3. 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.

4. As noted earlier, the Department 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. The Departmental officer conducted an independent assessment and concluded that, on the basis of information available including the documents provided in support of the application, the applicant failed to meet cl.500.212. 

5. The Tribunal accepts that the employee failed to undertake checks to verify the veracity of the applicant’s financial capacity, health insurance, bank statement, employment record and past education. The Tribunal accepts the findings of the independent officer that the applicant did not meet the GTE criterion. The Tribunal is satisfied that the failure to undertake the relevant checks and whether the applicant met the criteria for the grant of the visa, were contrary to mandatory procedural requirements. The Tribunal is satisfied that the conclusions of the review officer that the applicant did not meet cl. 500.212 is strong and highly persuasive evidence that the relevant employee who granted the visa failed to give regard to mandatory procedural and legal requirements. The question is whether that conduct was fraudulent.

6. 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]

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

   [4] 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

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

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

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

   [8] Ibid

   [9] 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]

7. 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”.[10]

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

8. 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”.[11] 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).

   [11] Ibid

9. The Tribunal accepts and finds that the applicant is one a number of 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 in circumstances 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.

10. Consistent with the above authorities and guiding principles, the Tribunal is satisfied that there is probative evidence to give rise to a reasonable suspicion founded on objective circumstances, that there has been fraud in the sense that the LES had acted with deceit and in breach of confidence where there has been an advantage gained by unfair means, namely the visa grant.  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, and a misuse of position. On the evidence, the Tribunal is satisfied that but for the fraud, the applicant would not have been granted the visa.

11. 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.

12. The Tribunal has doubts about the applicant’s contentions that he did not know, or was involved in any way in the conduct of the Departmental officer but for 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.

13. The Tribunal discussed with the applicant the submissions relating Odinkaeze (Migration) [2018] AATA 1295, which was another application for the review of the cancellation of a Nigerian student visa.   The Tribunal respects and gives regard to other decisions of the Tribunal but is not bound to follow those decisions.  It is however noteworthy that in that case, the Tribunal was not satisfied there was sufficient evidence to establish a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud of the allegedly corrupt Department officer. 

14. For the reasons outlined, the Tribunal in the current review has reached different conclusions.  Having regard to the evidence, the Tribunal is satisfied there is sufficient probative evidence of a causal connection between the fraudulent conduct and the grant of the visa in this case.  The Tribunal is not persuaded by the submissions that the decision-maker had applied all the required legal criteria, including application of policy which is within their discretion. The evidence before the Tribunal demonstrates that the decision-maker failed to apply mandatory procedures in order to ensure that the applicant met all the relevant criteria.

15. The Tribunal does not accept the submissions that the applicant was not flagged as high risk and that there is no evidence that the Departmental officer failed to verify the applicant’s employment and education records. The applicant was provided with documents such as the assessments by the senior officer who reviewed the application, clearly demonstrating that the applicant, amongst other things failed to meet the GTE criterion.

16. The Tribunal is not persuaded by the submissions that the applicant’s visa was cancelled arbitrarily without proper attention to his particular circumstances or that the applicant met all the relevant criteria and he would have been granted the visa. The Tribunal is satisfied that the totality of the evidence demonstrates that the visa would not have been granted had the fraud not occurred.

17. For the stated reasons, 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.

18. The Tribunal is therefore 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

19. 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

20. The applicant has contended that he came to Australia to study and that he is currently studying.  He provided evidence in support.

21. The fact that the applicant was granted the visa as a result of the fraudulent conduct of the LES who did not undertake the mandatory checks raises doubts about whether or not the applicant would have met the relevant visa criteria, including but not limited to, the GTE requirement which is essentially an integrity measure to ensure that the student visa program is used as intended.

22. 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.

54.      Ministerial Direction 69 is relevant. 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.

1. 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.

2. For the stated reasons, the Tribunal has found that in the applicant’s case, mandatory assessment procedures were not followed. 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.

3. The Tribunal accepts the evidence that the applicant has been studying in Australia. The Tribunal acknowledges that his current studies could be evidence of the intention to study and that he is a genuine student, however in light of the finding that established procedures were not followed, the Tribunal gives those aspects limited weight in the applicant’s favour.

4. The Tribunal has taken into consideration the fact that the applicant is currently enrolled in a course but given the Tribunal’s lack of satisfaction in relation to his intention to travel and stay in Australia, the Tribunal does not consider the current enrolment to mean that the applicant has a compelling need to remain in Australia.

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

   ·    the extent of compliance with visa conditions

6. There is no information that would indicate that the applicant has not complied with visa conditions. 

7. The Tribunal is of the view that compliance with visa conditions is a legitimate expectation and consequently, the Tribunal gives this aspect neutral weight.

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

8. The applicant argued that if his visa were to be cancelled, this would lead to a disruption in his studies and it would cause emotional as well as psychological consequences. He argued that he has spent money on tuition and other expenses. He indicated that his father would disown him and there would be disunity between him and his parents. He claimed that the cancellation would wreck his life and family.

9. The Tribunal accepts that the applicant spent money in Australia and that there would be a degree of hardship in terms of financial, emotional and psychological. On the evidence before it, the Tribunal is not satisfied that his father would disown him or that cancellation would lead to disunity or that his life would be wrecked as a consequence.

10. If the applicant’s visa were to be cancelled, he would not be in a position to complete his studies in Australia.  The Tribunal appreciates the significance of this outcome which would mean that he has lost the opportunity to complete studies in Australia in the current stipulated timeframe. However, the applicant could reapply offshore for a student visa and if he were to meet the relevant criteria, he could potentially obtain another visa.

11. 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 lawful legislative consequences, the Tribunal does not consider them to amount to hardship in this case.

12. The Tribunal has carefully considered the applicant’s circumstances.  The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant and potentially his family in Nigeria.  The Tribunal gives some weight to this consideration in favour of the applicant. 

13. The cancellation scheme is not intended to be punitive but has a significant role in maintaining the integrity of the 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.

14. The Tribunal is of the view that although there is hardship in case of the visa cancellation, it does not weigh strongly 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

15. 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.

16. The applicant has maintained that he was not aware of, or involved in the fraud.  The representative submitted that the applicant has maintained that he has had no involvement or knowledge of the fraudulent conduct.

17. Even if the Tribunal were to accept that the applicant was not involved in the fraud, on his own evidence, he never checked a draft application and he claims not to have been involved in the process of applying for the visa because his brother and friend essentially did all. In those circumstances, the Tribunal does not consider the circumstances to be beyond the applicant’s control.

18. Moreover, r. 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.

19. 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.

20. The Tribunal gives this consideration significant weight in favour of cancellation.

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

21. The applicant responded to the NOITCC. The applicant claimed that he has cooperated with the Department and answered all their questions.

22. The Tribunal is of the view that engaging with the Department is a positive aspect and the Tribunal gives the applicant’s conduct in this regard some weight in his favour.

    ·whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellation pursuant to s.140.

24. The Tribunal gives weight to this consideration 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

1. 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. 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.

2. As discussed earlier, the cancellation scheme is not intended to be punitive but has a significant role in maintaining the integrity of the migration programme.  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 about maintaining integrity.

3. The scheme is also designed to have regard to the individual circumstances of the applicant to ensure a fair and reasonable decision, as demonstrated by the fact that the ground for cancellation in s.116(1)(g) exists, that ground does not require mandatory cancellation under s.116(3). The Tribunal has to consider whether the visa should be cancelled, giving regard to the circumstances of the case, matters raised by the applicant, and matters in the PAM3.

4. 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.

5. The Tribunal gives this consideration neutral weight.

   ·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

6. There is no evidence before the Tribunal and the applicant is not claiming that Australia would be in breach of its international obligations in case of cancellation.

7. The Tribunal gives this aspect neutral weight.

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

8. 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

9. There are no other matters relevant for consideration.

10. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. Although 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.

11. 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.

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

    DECISION

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

    Antoinette Younes

    
    Senior Member