ILOBI (Migration)

[2019] AATA 776

ILOBI (Migration) [2019] AATA 776 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs ONYINYE PERPETUA ILOBI
Mr JOSEPHAT TOBECHI ILOBI
Mr Ebubechukwu Joseph ILOBI
Mr Somtochukwu Joshua ILOBI

CASE NUMBER:  1724950

HOME AFFAIRS REFERENCE(S):           BCC2017/3233867

MEMBER:Antoinette Younes

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 26 February 2019 at 5:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – corrupt conduct by Departmental officer – established assessment processes – 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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 first named applicant’s (the applicant) 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.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

   PROCEDURAL MATTERS

   Sections 375A and 376 certificates

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

6. 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.

7. 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.

8. 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.

9. The Department provided the Tribunal with redacted versions of the relevant investigation reports.

10. 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.

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

    Departmental investigation

12. 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.

13. 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.

14. 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 her Nigerian nationality.

15. The applicant’s visa application was lodged online and was transmitted to the Department from an IP address which was the same address as the source of transmission of other student visa applications which were also the subject of scrutiny as part of the Department’s investigation. Those visa holders were directly linked to a third party based in Australia who, apparently, procured visas on their behalf through contact with one of the LES.

16. 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 a number of 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 her visa had been obtained as a result of the fraudulent conduct of the LES.

17. 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, on the basis of information available including the documents provided in support of the application, the applicant failed to meet cl.500.212.

18. Relevantly, the officer noted that, amongst other things, the applicant did not provide sufficient evidence relating to her education, employment, 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 she had sufficient funds available, had not been verified. It was also noted that the authenticity of the health insurance document had not been confirmed.

    Section 359A letter

19. 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 BCC2017/3233867), 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.6-67 of Department file BCC2017/3233867 f.79-49 of Tribunal file 1724950), the visa would not have been granted.

    Hearing invitation

20. On 2 November 2018, the Tribunal sent to the applicant an invitation to attend a hearing scheduled at 10.30 am on 17 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.

21. 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, she 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 she 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.

22. 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 17 December 2018 was cancelled.

23. On 6 December 2018, the Tribunal wrote to the applicant to advise her 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 her another opportunity to provide submissions by 14 December 2018. The Tribunal has received further material which will be discussed throughout the decision.

24. 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

25. 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?

26. 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).

27. 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.

28. On 14 September 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) on the basis that:

    ·    On 28 December 2016, the applicant lodged a subclass 500 visa electronically using the Departmental online processing system. The applicant was granted the visa on 4 January 2017 by the Department’s Post in Pretoria, South Africa.  On 1 March 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.

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

30. In her response of 18 September 2017 (a copy of which was provided to the Tribunal), the applicant made submissions relating to s.116(1)(g) and other provisions. She argued that:

    1) The language of r.2.43(1)(o) is not specific; it speaks of the fraudulent conduct of any person in a generalised manner. Read literally, the regulation would have the result that the “Minister’s fraudulent conduct is grounds for the Minister to cancel anyone’s visa. This would be contrary to principles of law”. The Minister’s delegate derives their powers from the Minister who in turn derives power from the Act. The intent of Parliament and purpose of the Act cannot be interpreted to mean that the Minister can cancel a visa where the Minister has committed fraud.

    2)    In the NOITCC it is alleged that the Minister suspects that her visa has been obtained as a result of the fraudulent conduct of a Departmental employee. The evidence of the fraudulent conduct of a Departmental employee is an investigation which indicates the Department employee may have acted improperly to grant her visa, otherwise her visa would not have been granted.

    3)    The ground for cancellation as alleged does not exist because it is unfounded and unsubstantiated. She denies the allegation on the basis of the fact that she had lodged a valid application for the visa which was acknowledged as being valid. She provided all the required documentary evidence requested by the Department and “in effect met all the requirements” for the grant of the student visa. She did not have any direct contact with the Departmental employee and this is supported by the fact that the application was lodged online.

    4)    The term “may” suggests uncertainty and it does not confirm the existence of the alleged fraudulent conduct by the departmental employee, or anyone else. She is not party to any of the alleged conduct and her visa should not be cancelled as a result. There are no reasonable or demonstrable grounds to cancel her visa and any such action would be unfair, unjust and contrary to the rules of justice. It is a settled universal principle that one should not be punished or be disadvantaged as a result of an offence or misconduct by someone else. The ground for cancellation is predicated on mere suspicion and has not been proven or established. It would be unfair to punish her solely on the suspicion of fraudulent conduct.

    5)    There are no provisions in the Act or the Regulations that a subclass 500 visa application cannot be processed in seven days. The Departmental instructions indicated that 75% of applications are processed in a certain number of days, and 90% of applications are processed within a certain number of days. She lodged a valid visa application and met all the requirements. She arrived in Australia on a valid student visa and she has been studying in Australia. She has complied with the visa conditions. She is a law-abiding citizen who respects the Australian culture and Australian people. The family has integrated into the Australian society and she hopes to obtain Australian qualifications which would enhance her employment opportunities.

    6)    The family is comprised of four including her husband and two minor children. The family has spent substantial sums of money to pay for the visa application fees, health insurance, flight tickets to Australia, accommodation bond and rent, and school fees. She and members of her family would suffer great financial losses in case of the cancellation of her visa.

31. In support of those submissions, the applicant provided documents including, confirmation of enrolment and attendance, her husband’s resignation letter from his 10 years of employment in Nigeria, Australian employment letter, bank statements, letter from the Australian Academy of Commerce dated 7 November 2018 confirming that the applicant is a full-time student currently enrolled in the Diploma of Leadership and Management commencing on 8 January 2018 to 7 July 2019, her successful completion of seven units, payments for the course, notices regarding the grants of subclass 500 visas, grant of subclass 050 visa, confirmation of health cover, and NSW birth certificate of Favour Ilobi who was born on 3 August 2018.

32. In submissions to the Tribunal dated 29 November 2018, it was argued that the applicant was unaware and uninvolved in the fraudulent conduct that has been detailed in the documents provided following the request for access to the written material. In those submissions, it was accepted that the grounds for cancellation exist on the basis of having a suspicion that the applicant’s visa was obtained as a result of fraudulent conduct and that it is not necessary to demonstrate that the applicant herself was involved in the fraudulent conduct. The representative noted that the applicant accepts that the Tribunal will reach this finding on the basis of the relevant information provided.

33. In further submissions dated 29 November 2018, the representative provided background information in relation to the applicant’s qualifications and employment. In essence, the representative argued that:

    ·The applicant had a long-standing employment with her former employer where she had worked for over five years and was promoted as well as being supported to pursue formal qualifications in management for employment advancement.

    ·The applicant began to explore suitable courses and it was then when her brother-in-law who lives in Australia as the holder of a student visa suggested to her to obtain management qualifications from Australia. The applicant’s former employer was supportive as this option meant that the applicant would return from Australia with management qualifications which would increase the funding from their parent company organisation because they felt that obtaining qualifications from a Western country such as Australia would set the company apart from its competitors.

    ·The applicant contacted her brother-in-law and asked if he would be able to assist with the preparation of the visa application and he advised her that he would make inquiries. The brother-in-law advised the applicant to prepare her passport and sit an English examination because he understood those to be mandatory requirements.

    ·The applicant was then advised to share her email password and was receiving advice from an agent in Australia to lodge the application. She sent requested documents and information and her brother-in-law who was responsible for making payments of the requested funds directly in Australia. She was not aware that she had an Immiaccount and she did not review the online application prior to lodgement. She felt comfortable that the application had been lodged at the time. She was aware that payment had been made by her brother-in-law to the agent and that the money covered term tuition fees for a term, health insurance and fees for lodgement of the application.

1. Although the applicant has now accepted that the ground for cancellation exists, it is nevertheless the Tribunal’s task to make findings in relation to all relevant matters raised in the review.

   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. The evidence before the Tribunal indicates that the employee failed to undertake checks to verify a number of matters including the veracity of the applicant’s employment record and past education. This was contrary to mandatory procedural requirements.

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. Relevantly, the officer noted that, amongst other things, the applicant did not provide sufficient evidence relating to her education, employment, 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 she had sufficient funds available, had not been verified. In submissions to the Tribunal, the representative contended that the applicant provided genuine documents but she has now discovered that subsequent to the release of documents, certain documents she provided in her email address were not submitted in the application. In relation to the reassessment table (referring to the independent assessment by the senior officer), while the representative argued that the applicant had met all the relevant criteria, it was accepted that she did not meet cl. 500.212 - Genuine Temporary Entrant.  The representative noted that the documents provided to the Tribunal ought to demonstrate that the applicant now meets that criterion.

5. The Tribunal is satisfied that the concession by the applicant that the visa application did not include relevant documents supports a finding that the Departmental officer did not check or verify aspects of the application. The conclusions of the review officer that the applicant did not meet cl. 500.212 are 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[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]

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”.[9]

   [9] 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”.[10] 

   [10] Ibid

9. 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).

10. The Tribunal accepts that the Departmental officer executed visa 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 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 accepts that the applicant was flagged as a ‘high-risk’ client on the basis of her Nigerian nationality and that her visa was granted in a manner that did not comply with mandatory procedural requirements for ‘high-risk’ clients.

11. 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 fraudulent conduct by the LES who 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. That is, the Tribunal finds that the applicant’s visa was obtained as a result of the fraudulent conduct.

12. The applicant has contended that documents provided subsequently demonstrate that she meets cl.500.212.  The main question is whether at the time of assessment of the visa application, she met all criteria.  The evidence before the Tribunal indicates that at the time the LES granted the visa, there was insufficient evidence, lack of adequate scrutiny, and failure to follow mandatory procedures.

13. The applicant has contended that she 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. There is information in the Departmental file that the applicant is linked through her brother-in-law to the person in Australia who was making payments to the LES. However, even if true, this does not establish that there was fraud on the applicant’s part. The Tribunal notes that this does not appear to have been pursued further by the Department. The Tribunal has not used this material in an adverse manner to the applicant.

14. The Tribunal has some doubts about the applicant’s contentions that she 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 herself involved in the fraudulent conduct.

15. 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 not met. 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

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 claimed that she began to explore suitable courses and it was then when her brother-in-law who lives in Australia as the holder of a student visa suggested to her to obtain management qualifications from Australia. She claimed that her former employer was supportive as this option meant that the applicant would return from Australia with management qualifications which would increase the funding from the parent company organisation because they felt that obtaining qualifications from a Western country such as Australia would set the company apart from its competitors.  The Tribunal has some doubts about the applicant’s claims in light of the fact that mandatory procedures were not followed, including checking of employment background. The Tribunal is not persuaded that those matters are evidence that the applicant’s purpose in coming to Australia is to study or that some weight ought to be given in favour of the applicant on this basis.

18. In a Statutory Declaration to the Tribunal, the applicant indicated that nine months after arrival in Australia, she discovered that she was pregnant and to prove that she is a genuine student, she continued to study during her entire pregnancy. Raising all three children with the help of her husband but continuing to study has caused stress on her physically and mentally.

19. In the submissions to the Tribunal, the representative noted that:

    ·    The applicant entered Australia for the purpose of completing a Diploma of Leadership and Management at the Australian Academy of Commerce. The applicant has maintained her enrolment during her stay in Australia and only ceased studying as a consequence of the cancellation of her student visa and the refusal by the Department to grant the applicant a bridging visa with permission to study.

    ·    The applicant was mindful of compliance with visa conditions and she deferred her studies until she was granted permission to study. The college has confirmed that the applicant is due to complete her course by 7 July 2019.

    ·    If the Tribunal were to affirm the decision to cancel the visa, the applicant would be forced to depart Australia without the completion of her qualifications. All her efforts would have been wasted.

    ·    Her purpose to travel and stay in Australia should be given favourable weight and the fact that she has not completed her qualifications is a significant reason not to cancel the visa.

20. The Tribunal acknowledges that continuing to study during pregnancy might have presented challenges but in Tribunal’s view, this does not “prove” she is a genuine student.  The Tribunal however gives it some weight.  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 genuine temporary entrant (GTE) requirement which is essentially an integrity measure to ensure that the student visa program is used as intended.

21. The applicant has provided documents and contended that they demonstrate that she meets the relevant criteria including cl.500.212.  The issue is whether at the time of assessment of the visa application, she met all criteria.  The evidence before the Tribunal indicates that at the time the LES granted the visa, there was insufficient evidence, lack of adequate scrutiny, and failure to follow mandatory procedures.  Even if the Tribunal were to accept the applicant’s contentions, the Tribunal would give this limited weight in her favour.

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. Ministerial Direction 69 is relevant.

23. 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.

24. 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.

25. 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 she has now become aware that the student visa application did not contain relevant information. 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.

26. The Tribunal accepts the evidence that the applicant has been studying in Australia. The Tribunal acknowledges that her current studies could be evidence of the intention to study, however this does not mean that it is conclusive evidence of her intentions, which for the identified reasons were not assessed in accordance with established procedures.

27. 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 her 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.

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

    ·             the extent of compliance with visa conditions

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

29. In a Statutory Declaration dated 14 December 2018, the applicant noted that:

    ·Coming to Australia was a major decision for the family which was costly.  She travelled with the children. Initially, it was planned that her husband would just travel with them and return to Nigeria to continue working in a job that was very important to him. His employer gave him 28 days of annual leave and he told the employer that he would be returning subsequent to helping the family settle in Australia. The two sons however did not settle well and they were asking about their home in Nigeria. The two boys hated being in Sydney so nine days later, her husband contacted his employer telling them that he was resigning.

    ·In Nigeria they lived in a big family home. She has five siblings, four sisters and a brother as well as a surviving parent, her mother, all of whom live in Nigeria. Her husband has six sisters and two brothers and a surviving parent, his mother, all of whom live in Nigeria with the exception of one younger brother who lives in Australia. Her children were used to being surrounded by family in Nigeria. They are concerned about their sons. Her older son had to stop school and has not studied in Australia. Due to cultural differences, his speech and writing had slowed and is going “backwards”. They are looking forward to enrolling him in school in Australia so that he could catch up. It would be embarrassing for the children to grow up and discover that she had to leave Australia and it would be humiliating. She would be demoralised, depressed, frustrated and consequently she would doubt her ability to take care of her children in such a state.  Her heart sinks every time she gets an email or phone call from her lawyer. She did not produce enough milk for her daughter as her body did not cope with all the stress.

    ·They have not done anything wrong. They have obeyed the laws of Australia and she has studied. They are being treated like criminals. They understand that what happened was serious but this occurred without their knowledge. They did not know that the case officer was being paid to approve visas and they had no idea of anything wrong happening behind the scenes. They would never have wanted to come to Australia on the basis of a fraudulent visa and they are not this type of family. They are a religious and law-abiding family with morals and ethical standards.

    ·She has not completed her courses and if forced to return, she would have spent a substantial sum of money on health insurance and school fees as well as everything else in Australia. She is not asking for a permanent visa or anything more than having her student visa reinstated. She wants to complete what she has started. She has put her family through much and she would not be able to cope in case the visa is cancelled.

    ·In case of their return to Nigeria, her husband would not have a job because he has been trying to contact his former employer and the human resources team is not responding to her husband. His former employer was unhappy about the way he resigned. Her employer is also not sure what job they could give her on her return to Nigeria.

1. The applicant provided to the Tribunal documents in support such as bank account authority, letter of resignation dated 14 March 2017 from the former employer of the applicant’s husband confirming his resignation on 10 March 2017, money receipt, reference letter of support from the applicant’s former employer dated 7 December 2018 referring, amongst other things, to the applicant’s highly regarded potential qualifications from Australia, the applicant’s academic results at Senior School Certificate of June 2009.

2. The representative submitted that the delegate’s assessment that the applicant would be able to apply for a bridging Visa E to finalise outstanding matters is irrelevant in determining hardship. In case of the visa cancellation, the representative submitted that there would be a substantial degree of hardship including:

   ·Financial – the applicant has spent a considerable amount of money on expenses such as tuition fees, rent, living expenses for the family, health insurers and legal fees. The applicant is eager to complete her studies and return to Nigeria having achieved her objectives in coming to Australia. In case of cancellation, the applicant would be forced to return to Nigeria having received no benefit from her financial investment in Australia.

   ·Emotional - at all times the Department has maintained that the applicant was not directly involved because the fraudulent conduct which caused the visa cancellation so it can be said that the applicant is an “innocent victim from the actions of others”. When the Department decided to cancel the applicant’s visa, the family became extremely fearful for their personal safety and well-being as a result of becoming unlawful non-citizens.  The applicant is a mother of three children and was facing the possibility of being detained for the wrongdoing of others. Since the cancellation, the family has spent their time and money fighting the review with the uncertainty that the student visa may never be reinstated.

   ·    Circumstances on return to Nigeria - the applicant expected to return to Nigeria around May 2021 subsequent to the completion of her studies. The family cannot return to Nigeria in the near future because since their arrival in Australia, and another family has moved in their residence in Nigeria. This means that the family would not have suitable accommodation.

   ·    Previous employers of the applicant and her husband are unable to give them positions as they were not expected to return for another 2 ½ years. The applicant is not qualified to begin in her proposed position because she would be returning without the additional qualifications.

3. The Tribunal accepts that the family has spent money in Australia and that there would be a degree of hardship, particularly as the family travelled with their two young children. The Tribunal accepts that the applicant and her husband could face employment and accommodation challenges and that there would be a degree of hardship in this regard.  The Tribunal is of the view that the applicant’s legal costs were incurred subsequent to the cancellation of the visa and as she was put on notice of the potential that the visa would be cancelled, it is reasonable to suggest that she would have known that money could be wasted as she may not be successful. While those hardships are noted, the Tribunal gives them limited weight in the applicant’s favour.

4. Unless the applicant makes other arrangements, she could become unlawful and liable for detention.  She would also have difficulties in obtaining any further Australian visas.  Given that those are intended legislative consequences, the Tribunal gives this aspect limited weight in the applicant’s favour.

5. If the applicant’s visa is cancelled, she would not be in a position to complete her studies in Australia.  The Tribunal appreciates the significance of this outcome which would mean that she 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 she were to meet the relevant criteria, she could potentially obtain another visa.

6. The Tribunal has carefully considered the applicant’s circumstances and the submissions that she was not involved in the fraud.  The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant and her family, however, the Tribunal does not consider those impacts to represent a degree of hardship to mean that the visa should not be cancelled. 

7. 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.

8. 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

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 maintained that she was not aware of, or involved in the fraud.  The representative submitted that the applicant has maintained that she has had no involvement or knowledge of the fraudulent conduct. The representative contended that given that the investigation has also not raised any concerns relating to her knowledge or involvement in the matter, this should be given favourable weight.

11. The applicant’s visa was cancelled under s.116(1)(g) but the applicant’s explanations 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 applicant has conceded that certain documents she provided were not included in the application.  The Tribunal is satisfied that the applicant was under a legal obligation to ensure that all information provided in the visa application was complete and correct.

13. Even if the Tribunal were to accept that the applicant was not involved in the fraud, the applicant is responsible for the information provided in the application. The Tribunal does not consider that this was beyond the applicant’s control.

14. 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.

15. 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.

16. 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

17. The applicant responded to the NOITCC. The representative submitted that she has also maintained a respectable and abiding behaviour towards the Department.

18. The Tribunal is of the view that engaging with the Department is a positive aspect and the Tribunal gives it some weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

19. The applicant has given birth to her third child since her arrival in Australia. The student visas held by the three named applicants have been cancelled pursuant to s.140(1). This means that potentially four dependents would be impacted by the decision to cancel the visa.

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

    ·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

21. 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, she 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.

22. 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.

23. The representative submitted that although there are intended legislative consequences, those are not intended to punish visa holders who were not found to have any involvement or knowledge of the fraudulent conduct. It was further submitted that migration laws are not intended to punish people in the applicant’s position and it is the discretionary element which allows fairness to be applied.

24. 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 not designed to punish the applicant but is about maintaining integrity.

25. 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 if the ground for cancellation in s.116(1)(g) exists, that ground does not require mandatory cancellation. 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.

26. The Tribunal gives neutral weight to 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

27. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s son and two step-children under 18.  The CROC applies to children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

28. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.

29. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

30. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

31. The applicant arrived in Australia with two minor sons (born on [date] and [date]) and a daughter was born in Australia on [date].  The Tribunal needs to consider how the best interests of the applicant’s children would be affected by a decision to cancel the applicant’s visa.

32. The applicant has argued that they are concerned about their sons. Her eldest son had to stop school and has not studied in Australia. Due to cultural differences, his speech and writing had slowed and is going “backwards”. They are looking forward to enrolling him in school in Australia so that he could catch up. It would be embarrassing for the children to grow up and discover that she had to leave Australia and it would be humiliating. She would be demoralised, depressed, frustrated and consequently she would doubt her ability to take care of her children in such a state. 

33. In submissions to the Tribunal, the representative argued that forcing the family to leave Australia prematurely would break the pattern of the day to day lives of the children and would have a negative impact on their mental well-being. The two eldest children are now at an age where they understand their surroundings and have witnessed the distress suffered by their parents. It was further submitted that the children would be forced to return to Nigeria with their parents and live away from the family home and the applicant has concerns about the quality of life that she would be able to afford her children in light of her inability to secure accommodation or employment. The Tribunal appreciates that there would be some impact on the children including feeling unsettled but that does mean that Australia would be in breach of the CROC or that the visa should not cancelled.

34. It is reasonable to assume that it is in the best interests of children to be with their parents, and the Tribunal is not suggesting that they should be separated or live away from their home.  The Tribunal has given regard and some weight to the submissions that due to cultural differences, the eldest son has speech and writing difficulties.  The Tribunal is of the view that being young and with a limited time in Australia means that the children have a reasonable prospect of adaptability in Nigeria.  In fact, the Tribunal is of the view that as this is not a permanent visa and presumably the family intends to return to Nigeria, it would be in the interest of the three children to return to Nigeria sooner rather than later.  The longer the family stays in Australia, the more difficult it would be for the children to return to, and adapt in Nigeria, their home country.  Without meaning to sound unkind, the applicant and her partner would have considered the impact on their children to come to Australia temporarily and if they intended to remain permanently, then that would be contrary to the subclass 500 visa and to the GTE requirement. 

35. The Tribunal is not satisfied that it is in the best interests of the children that the applicant’s visa is not cancelled. In these circumstances, the Tribunal is not satisfied that Australia would be in breach of the CROC in case of the cancellation.

36. On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would not be in breach of its international obligations.

37. The Tribunal gives this aspect weight not favourable to the applicant.

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

100.   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

101.   There are no other matters relevant for consideration.

102.   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.

103.   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 she would suffer in not being able to complete her 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.

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

DECISION

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

106.   The Tribunal has no jurisdiction with respect to the other applicants.

Antoinette Younes
Senior Member