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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 649
Decision Date: 27 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr. Ihekaozor. The dispute arose when the Department of Home Affairs initiated cancellation proceedings based on allegations that the visa had been granted due to corrupt conduct by a departmental officer. The applicant contended that he was not directly involved in any fraudulent activity and that his visa should not be cancelled, particularly given his ongoing studies in Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, specifically whether the visa was obtained as a result of fraudulent conduct by any person, as prescribed by regulation 2.43(1)(o) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the applicant's stated purpose for travel and stay in Australia, and the integrity of the migration program.

The Tribunal reasoned that the evidence indicated a departmental officer had processed the applicant's visa application without adhering to mandatory guidelines, including failing to undertake relevant checks for a 'high-risk' client. This improper conduct meant the visa would not have been granted had the fraud not occurred. While the applicant was not directly involved in the fraud, the Tribunal found that the deficiencies in the processing raised doubts about whether the applicant would have met the visa criteria, including the Genuine Temporary Entrant (GTE) requirement. Consequently, the Tribunal was not satisfied that the applicant's purpose for travel and stay was genuinely to study, despite his current enrolment.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Ihekaozor's Subclass 500 (Student) visa. The Tribunal concluded that, considering the circumstances as a whole, including the integrity of the migration program and the lack of satisfaction regarding the applicant's genuine intention to study, the visa should be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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. 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. 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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