Ireye (Migration)

[2019] AATA 6605

Ireye (Migration) [2019] AATA 6605 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Toju Jiromu Ireye

CASE NUMBER:  1725467

HOME AFFAIRS REFERENCE(S):          BCC2017/2968925

MEMBER:K. Chapman

DATE:6 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 06 September 2019 at 11:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – ‘reasonable suspicion’ that a visa has been obtained as a result of ‘fraudulent conduct’ – high risk application based on Nigerian nationality – locally engaged Departmental staff in Pretoria – lacked formal authority to process application – failure to apply appropriate visa assessment processes and scrutiny – deficiencies in application – consideration of discretion – non-genuine student – integrity of Australia’s student visa program – knowledge or involvement in the fraudulent conduct – degree of hardship –Australian citizen de facto partner and child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Odinkaeze (Migration) [2018] AATA 1295
Patel v Minister for Immigration and Border Protection [2016] FCA 165

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 13 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 applicant, Mr Toju Jiromu Ireye, is a Nigerian national.

2. The visa was cancelled under s.116(1)(g) of the Act on the basis that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person, pursuant to the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 (‘the Regulations’). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The visa cancellation decision record of 13 October 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:

   a.on 17 April 2017, the applicant made an electronic application for a Subclass 500 Student visa;

   b.on 24 April 2017, the applicant was granted a Subclass 500 Student visa by a locally engaged Departmental employee in Pretoria, South Africa;

   c.on 9 May 2017, the applicant arrived in Australia;

   d.an investigation indicates that a locally engaged Departmental employee acted improperly by way of fraudulent conduct to grant the applicant’s visa;

   e.on 28 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa;

   f.on 29 & 31 August 2017, and 4, 8 & 26 September 2017, the applicant responded in writing to the NOICC denying he was involved in any wrongdoing and submitting material in support of his contention that he satisfies the criteria for the Student visa (the Tribunal has duly considered the aforementioned material); and

   g.on 13 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa. 

4. On 18 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. He subsequently provided a copy of that visa cancellation decision to the Tribunal. On 1 December 2017 and 12 April 2019, the Tribunal Registry sent copies of tranches of documents contained in the Departmental and Tribunal files in response to a request for access to written material pursuant to s.362A of the Act. Much of the material was despatched in redacted form, being subject to non-disclosure certificates issued by the Department (and also due to the privacy considerations contained in Australian Privacy Principle 6). Included in the aforementioned material was a copy of the ‘Referral to General Cancellations Network Cancellation Consideration’ document, ‘Visa Cancellation Referral Report’ prepared by the Enforcement Command – Investigations of the Australian Border Force, two ‘Investigation Report LES Misconduct’ documents pertaining to Locally Engaged Staff (LES) at the Australia High Commission (AHC) in Pretoria, South Africa, and an ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017 (also known as the ‘Key findings PMOI’ document).

5. In summary, the investigative reports referred to above outline that the Department launched an investigation into the conduct of Locally Engaged Staff in Pretoria when suspicions were raised that some Nigerian Student visa holders were engaging in criminal activity following their arrival in Australia. The investigation concluded that two Locally Engaged Staff were bypassing established Departmental procedures when granting Student visas to a cohort of Nigerian applicants. One of the staff, whom the Tribunal will refer to as Officer A, was found to have corruptly received payments from a third party in Australia (whom the Tribunal shall refer to as Mr C, who was himself granted a Student visa). The other staff member, whom the Tribunal will refer to as Officer B, was found to have been allocated certain Nigerian Student visa applications to process by Officer A and processed them without sufficient scrutiny in an improper manner contrary to established Departmental procedures. Officers A and B were also found to have colluded with each other during the investigation into their alleged activities. In sum, neither Officer A nor B had legitimate authority to process the Nigerian Student visa applications according to established Departmental procedures and they were both found to have acted improperly in breach of their conditions of employment.

6. The applicant lodged his Student visa application on 17 April 2017 and the visa was granted by Officer B on 24 April 2017. The investigative reports indicate that Student visa applicants from Nigeria are deemed to be ‘high risk’ applicants who are subject to greater scrutiny in relation to the processing of such applications (see the document ‘Student visa Assessment methodology’ at folios 180-185 of Departmental file BCC2017/2968925, which was raised with the applicant pursuant to s.359AA of the Act as is referred to in greater detail below). Further, the Department engaged a senior Australian based Officer (the ‘Subject Matter Expert’) to conduct an audit on a selection of Nigerian Student visa holders who were alleged to have been granted their visas contrary to the established procedures for high risk applicants.

7. The applicant was one such individual subject to audit (see the document ‘Student (subclass 500) visa assessment – schedule 2’ at folios 165-169 of Departmental file BCC2017/2968925, which was raised with the applicant pursuant to s.359AA of the Act as is referred to in greater detail below). The Subject Matter Expert concluded that the applicant failed to meet the requirements for the Student visa at the time of its grant. This conclusion is also reflected in the ‘Investigation Report LES Misconduct’ pertaining to Officer B (see ‘Allegation Eleven’ at folio 42 reverse side of the Tribunal file).

8. As previously indicated, much of the material in the Departmental and Tribunal files was subject to redaction on the basis of non-disclosure certificates issued by the Department and also on account of the privacy considerations contained in Australian Privacy Principle 6 (APP 6). Liaison between the Tribunal and the Department regarding the issue of non-disclosure resulted in an initial certificate pursuant to s.375A of the Act dated 21 November 2017, in relation to file BCC2017/2968925, being revoked on 19 February 2018. It was replaced with a certificate pursuant to s.376 of the Act dated 19 February 2018. Further material was supplied by the Department to the Tribunal under cover of a certificate pursuant to s.376 of the Act dated 17 April 2018.

9. The presence of the non-disclosure certificates and associated redaction of material was canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below. The Tribunal also notes that on 12 April 2019, Deputy President Redfern issued a Direction pursuant to s.378(1) of the Act prohibiting publication or disclosure of the non-redacted versions of the ‘Referral to General Cancellations Network Cancellation Consideration’ and ‘Student (subclass 500) visa assessment – schedule 2’ documents.

10. On 12 April 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment on or respond to the following information:

    -According to the Referral to the General Cancellations Network Cancellation Consideration document (f.35-36 of Departmental file BCC2017/2968925) 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.1-31 of Department file BCC2017/2968925 f.39-69 of Tribunal file 1725467), the visa would not have been granted.

11. In response to the s.359A invitation on 23 May and 1 June 2019, the Tribunal received documents including but not limited to written submissions, a Queensland Birth Certificate issued in 2018, confirmation of health cover, letter of sponsorship from Mrs Kate Ogiugo, financial records, confirmations of enrolment (COE), an identity document and a Statutory Declaration of the applicant dated 28 May 2019. All submitted material has been duly considered by the Tribunal.

12. On 28 June 2019, the Tribunal Registry sent to the applicant a copy of the Departmental file BCC2017/1400503 pertaining to his Student visa application. Copies of the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018 were also sent to the applicant. Some of the aforementioned material was redacted in accordance with APP 6. The applicant was also invited to comment upon the validity of the enclosed non-disclosure certificates if he wished to do so (noting that the presence of the non-disclosure certificates and associated redaction of material was also canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below). No written submissions were received in response, however a notification of the applicant’s pending change of address was submitted on 5 July 2019.

13. The applicant appeared before the Tribunal on 5 July 2019 to give evidence and present arguments. He gave his evidence using the English language. The applicant’s registered migration agent (‘the representative’) did not attend the review hearing and the applicant informed the Tribunal that he wished to proceed in his absence. The Tribunal also received oral evidence from the applicant’s partner, Ms D.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. The prescribed grounds for cancellation are set out in r.2.43 of the Regulations.

16. In the present case, the ground in r.2.43(1)(o) is relevant as the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. 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?

17. The Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa dated 28 August 2017 identified s.116(1)(g) of the Act and r.2.43(1)(o) of the Regulations, in the context of an investigation suggesting a Departmental employee may have acted improperly to grant the visa therefore arousing a reasonable suspicion it was obtained as a result of fraudulent conduct, as the proposed basis for cancellation. The response of the applicant, on 29 & 31 August 2017, and 4, 8 & 26 September 2017, contended he is an innocent party, had no knowledge of or any complicity in fraud, he was unaware of the conduct of the Departmental employee until receiving the NOICC, he met the requirements for the grant of the Student visa despite any inappropriate conduct of Departmental staff, he has no relationship with any Departmental employees, he is satisfactorily studying in Australia, there are no grounds for visa cancellation and in any event discretionary factors such as hardship to him, his family, two children residing in the United Kingdom, and the circumstances being outside of his control, should see his visa not be cancelled. Supporting material such as the financial records of Mrs Ogiugo (the financial sponsor), a letter from the financial sponsor, a Statutory Declaration of the applicant dated 6 September 2017, educational records, an English language test result, confirmation of health insurance, confirmations of enrolment (COE), identity documents and written submissions were also submitted by the applicant. The aforementioned material has been duly considered by the Tribunal.

18. In summary, the applicant claimed in his response to the NOICC that he had no knowledge of any wrongdoing, satisfies the criteria for the visa and would face significant hardship if his visa was cancelled for events outside of his control (noting also that his family made great sacrifices to send him to Australia and he has two children resident in the United Kingdom requiring his support). The Tribunal has duly considered the applicant’s contentions and supporting material in response to the NOICC and affords it some weight against cancellation of his Student visa. For completeness, the Tribunal is satisfied that the NOICC was correctly framed and properly identified the basis of the proposed visa cancellation.

19. In relation to his review application, the applicant expanded upon the contentions outlined above. In written material, the applicant advanced the position that he consulted with a friend, Mr Kelvin Tayo, who knew an agent in Australia who may be able to assist with his aspiration to study. Notwithstanding the aforementioned, the applicant also decided to contact another friend, Mr Tobe Onimoe who was residing in Australia, for advice on study options. The applicant apparently trusted Mr Onimoe and only dealt with him in connection with his Student visa application. Written submissions suggest that email traffic indicates Mr Tobe Onimoe liaised with a Mr Petersen Okechukwu Nwabuokei (‘Petersen’) and Mr C (who is referred to in the investigative reports, including with respect to making corrupt payments to Officer A) and they acted improperly to submit the Student visa application electronically, without the applicant’s knowledge. Further, it is contended that the applicant’s travel to Australia was arranged by a person likely to be connected to Mr C. The applicant’s Statutory Declaration of 28 May 2019 indicates that he liaised directly with Mr Tobe Onimoe and made payments of $7,500 (AUD) to him and that following receipt of the NOICC he learned that Peter (‘Petersen’) Nwabuokei and Mr C were involved. The applicant maintained that he relied upon his friend Mr Tobe Onimoe and never saw the visa application or communicated with the Department or Mr C.

20. Further, the applicant contended that his Student visa was granted by Officer B, who had not been shown to receive payments from Mr C but rather had processed a batch of visas to increase her statistical output, and therefore no fraudulent conduct was apparent. As previously outlined, the applicant submitted supporting material in response to the s.359A invitation to buttress his contention that he satisfied the criteria for the grant of the Student visa despite the conduct of the Departmental Officer. Such material included confirmation of health cover, letter of sponsorship from Mrs Kate Ogiugo, financial records, confirmations of enrolment (COE), an identity document and a Statutory Declaration of the applicant dated 28 May 2019. The aforementioned supporting material has been duly considered by the Tribunal and it is afforded some weight against cancellation of the applicant’s Student visa.

21. Additionally, by way of submitted documentary material, the applicant advised the Tribunal that he has been in a cohabiting relationship with Ms D, who is an Australian citizen, for around two years. A Queensland Birth Certificate was also submitted to demonstrate that they have a child together, who is now aged approximately 16 months old. The applicant contends that his partner and child will suffer great hardship if his Student visa is cancelled. The aforementioned supporting material has been duly considered by the Tribunal and it is afforded some weight against cancellation of his Student visa.

22. At the review hearing, the Tribunal began by explaining its role and the purpose of the hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(g) of the Act as the delegate concluded the prescribed ground in r.2.43(1)(o) exists as she reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, it must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

23. The applicant gave oral evidence to the Tribunal which may be summarised as follows. He confirmed his submitted Statutory Declaration dated 28 May 2019 is true and correct, and advised that he had nothing to add about the NOICC or his response to it. The applicant disagrees with the decision to cancel his visa because following that time he went through his visa application ‘extensively’ and noticed discrepancies in it which are not his fault. The applicant outlined that he used an agent whom he paid and supplied with his documents. The applicant’s understanding was that the agent would lodge the documents on his behalf at the Department’s Brisbane office. Apparently, the applicant only learned of the involvement of the Australian High Commission (AHC) in Pretoria, and the existence of an Immi Account for the visa application, following receipt of the NOICC. The applicant outlined that following his immigration detention he learned that his agent ‘Peter’ (aka ‘Petersen’, that is Mr Petersen Okechukwu Nwabuokei) was involved in the online visa application. The applicant also indicated that he gave documents for the visa application to a friend, Mr Tobe Onimoe, who passed them onto Peter. Additionally, the applicant stated that he didn’t know Peter was involved until after his own immigration detention as a result of the visa cancellation.

1. The applicant explained that he knows Tobe because their mothers’ work together in Nigeria. The applicant wanted to study in Australia because he was previously married, lost his job, had ‘nothing doing’ at the time, he had started a small business that was not going well and he wanted to acquire an international certificate to assist him to find employment and assist his people in Nigeria. The applicant advised that he spoke with a priest, Father Frank Obi, in Nigeria about his personal situation. Father Obi then directed him to speak with a Mr Kelvin Tayo who knew of study options and was also a secondary school classmate of the applicant’s. The applicant informed the Tribunal that Kelvin ‘coincidentally’ spoke to Tobe about Student visas in Australia. Regrettably, Kelvin passed away in a motor vehicle accident around two months after the applicant arrived in Australia. The applicant indicated that he liaised with Tobe, who was in Australia, who in turn liaised with a migration agent in Australia with regard to his Student visa application. The applicant paid Tobe $7,500 (AUD) in instalments for services rendered by the agent in relation to his visa application.

2. According to the applicant, he and Tobe had a disagreement because the latter would not let him speak directly to the agent, apparently on account of the time difference between Australia and Nigeria. The applicant therefore passed his documents to Tobe, obtained his COE from him and continued to liaise with him because he was a trusted family friend. The applicant referred to email trails showing that Tobe liaised with Peter who in turn liaised with Mr C in relation to his Student visa application. Further, in January 2017 Tobe apparently rung the applicant to advise further payment was required because the currency exchange rate had altered and if payment could not be made then the visa would not be granted. The applicant was unhappy with the situation, but realising he couldn’t obtain the visa without paying more he obtained assistance from his mother to pay Tobe. Ultimately the applicant paid Tobe the extra funds and the visa grant was sent to him ‘almost immediately’. The Tribunal raised with the applicant that it seemed unusual he would proceed with Tobe’s assistance under these circumstances, to which he responded that he trusted Tobe as a family friend. The applicant advised the Tribunal that he never saw the visa application prior to its lodgement and he denied knowledge of Peter and Mr C until after his Student visa was cancelled.

3. During the review hearing the Tribunal conferred with the applicant regarding the existence of the s.375A certificate dated 21 November 2017, the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018. The Tribunal outlined that redactions of material supplied to the applicant were due in part to these certificates and also due to the application of APP 6. The applicant was invited to comment upon the validity of the aforementioned non-disclosure certificates and the privacy redactions. The applicant had no submissions to make.

4. The Tribunal expressed its preliminary view that the s.376 certificates are valid as public interest grounds are stated and that the redactions had been properly made. The Tribunal outlined that the ‘gist’ of the information covered by the majority of the redactions related to the identities of third parties. The applicant was invited to make submissions upon this however he declined to do so. Following careful consideration, the Tribunal is satisfied that the s.376 certificates are valid and accordingly it has exercised its discretion to release material in redacted form having regard to the stated public interest grounds and providing the applicant with the opportunity to comment upon the ‘gist’ of the material not disclosed in full to him (noting also that redactions have been made in accordance with APP 6). For the sake of completeness, the Tribunal notes that it has not placed any weight in an adverse fashion upon material not disclosed in full to the applicant unless specifically referred to pursuant to the procedures in s.359A and s.359AA of the Act.

5. The Tribunal raised with the applicant that the Registry did not send him a copy of folios 180-185 of Departmental File BCC2017/2968925 in accordance with the applicable s.376 certificate (the ‘Student visa Assessment methodology’ document). Given that the s.376 certificate is valid, the Tribunal determined not to release the document in full to the applicant but provided him the ‘gist’ of the information contained within, in conjunction with other information, and did so pursuant to the procedure in s.359AA of the Act:

   a.The gist of the information relates to the document entitled ‘Student visa Assessment methodology’. It contains guidance to Departmental Officers for the processing of Student visa applications including the necessity to perform certain checks upon information such as that relating to identity, enrolment, English language ability, employment, finances and character. Relevantly for offshore applicants considered to be ‘high risk’, more rigorous scrutiny is given to examination of the Genuine Temporary Entrant (GTE) requirement such as checking employment and education documents for any evidence of fraud, checking study and employment history particulars and also assessing the other relevant circumstances of the applicant in a more detailed fashion. Generally, an applicant would be interviewed by a Departmental Officer in relation to such visa applications;

   b.The Departmental file BCC2017/1400503, which is the Student visa application file, indicates that the applicant had not provided to the Department a copy of a letter from his financial sponsor to demonstrate access to the sponsor’s funds at the time he was granted the visa; and

   c.The document ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017, also known as the ‘Key Findings PMOI’ document, indicates that it is almost certain that there is active organised people smuggling of Nigerian citizens through the use of fraudulent documentation to obtain student visas facilitated by a locally engaged employee and it is almost certain that a locally engaged employee ‘is receiving money in return for granting student visas containing false information and fraudulent documents.’

6. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that his Student visa was obtained as a result of fraudulent conduct by a Departmental Officer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant indicated he would respond straight away.

7. The applicant responded to the s.359AA information by indicating that he met the criteria for the Student visa in terms of the documents he submitted, he is a university graduate and believes proof of this should have been submitted, he has a letter of financial sponsorship and he doesn’t know what happened with his Student visa application. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

8. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

   a.The Departmental file BCC2017/2968925 at folios 165-169 contains an audit by a Departmental Subject Matter Expert of his Student visa application. The Departmental expert determined that he did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) for reasons including that his submitted Genuine Temporary Entrant statement was similarly worded to the statements of others granted Student visas by Departmental Officers suspected of granting visas improperly, he was unemployed and there was no evidence of him having employment to return to in Nigeria, and no sponsor letter was provided to indicate he had access to the financial sponsor’s funds. For completeness, the Tribunal noted that Ministerial Direction 69 requires decision makers to consider a range of factors with respect to the Genuine Temporary Entrant requirement including an applicant’s circumstances in their home country, potential circumstances in Australia and value of the course to their future; their immigration history, matters related to minors and any other relevant matters; and

   b.For completeness, the Tribunal notes that his Student visa application file BCC2017/1400503 contains the particulars referred to by the Departmental Expert including the Genuine Temporary Entrant statement, lack of financial sponsor letter and lack of evidence of employment.

9. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that his Student visa was obtained as a result of fraudulent conduct by a Departmental Officer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant advised that he would respond to the s.359AA information straight away and did so by indicating that he did not complete the online Student visa application, rather he submitted documents to his friend for this purpose. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

10. The Tribunal indicated to the applicant that the material raised with him in the s.359A invitation prior to the hearing, that is the Referral to General Cancellations Network Cancellation Consideration document, Visa Cancellation Referral Report and the two Investigation Reports into LES Misconduct, tends to suggest that his visa was granted by Officer B, in a manner that did not follow established Departmental procedures and therefore it was obtained as a result of fraudulent conduct. The applicant was invited to comment and indicated that he does not know Officers A or B, he has never been in contact with them and he has not been to South Africa.

11. The Tribunal raised with the applicant that the two Investigation Reports into LES Misconduct make findings that Officers A and B colluded with each other by being in contact during the investigation contrary to the terms of their suspensions. For example, Officer B initially denied being in such contact then admitted it only when presented with evidence from mobile phone records. The investigators found portions of Officer B’s evidence to be inconsistent and implausible. They determined that Officer A received payment for granting Student visas and also that she assigned applications to Officer B in a manner contrary to established Departmental procedures. They also determined Officer B granted Student visas to Nigerian Students based upon the advice of Officer A and without applying appropriate visa assessment processes and scrutiny. The Tribunal indicated that this material, which was raised with the applicant according to s.359A of the Act, tends to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and replied that he doesn’t know either of the Officers, nor has he contacted them by telephone. He added that he only contacted Tobe in Australia because he was a friend.

12. The Tribunal raised with the applicant that in written submissions he indicated he liaised with a Mr Tobe Onimoe, who then appears to communicate with either Mr C or a Mr Petersen who were inappropriately acting in relation to his Student visa application. The Tribunal invited the applicant to provide further information and he advised that following his receipt of the NOICC, and subsequent visa cancellation, he confronted Tobe in Australia. Tobe apparently told the applicant about Peter (aka Petersen). The applicant advised the Tribunal that he had seen Peter in Australia but didn’t know him then. In due course the applicant confronted Peter himself, with the latter saying nothing and driving off. The applicant then focussed on his response to the NOICC but was subsequently detained. The day after his release from detention, the applicant was at his house when Peter drove around to see what information he had provided. The applicant apparently told Peter that he told the truth and he wanted to fight Peter. The applicant’s partner, Ms D, was apparently present and wanted to call the Police. Tobe was also there and intervened then Peter left. The applicant apparently saw Peter the following day and was advised by him the Police and the Department had called him about the altercation. The applicant advised Peter that he had not called the Police, but indicated to him that ‘his sins were catching up with him.’

13. When the Tribunal raised with the applicant that it seemed curious he had no involvement with his Student visa application other than to send documents to Tobe, the applicant responded that he did so because he trusted Tobe as a friend. He added that Tobe had told him that he would send the information directly to the Department’s Brisbane office. The applicant also stated that he never knew about the online Student visa application. The Tribunal raised with the applicant that it might have difficulty accepting he had no involvement with his Student visa application other than to send documents to Tobe, particularly given the problems he outlined earlier regarding his interactions with him, inviting his comment. The applicant responded that his problems arose out of curiosity. Apparently Tobe sent an email to others in relation to his visa application, however the applicant never saw the visa application himself. When Tobe advised him to sit the PTE English language test he did so. When he was admitted to study at his College in Australia, the applicant convinced himself that he was needlessly worrying. He then filled in some forms and sent them to Tobe.

14. The Tribunal raised with the applicant that it might have difficulty accepting the Student visa cancellation was outside of his control given his tertiary level of education and his evidence that he just gave his documents to Tobe and never checked his own visa application. The applicant was invited to comment and he responded that he trusted Tobe, never knew there was an online visa application, he didn’t know the visa application process and relied upon Tobe, he thought his documents were being submitted to the Department’s Brisbane office and it was his first time travelling outside Nigeria.

15. The Tribunal drew to the applicant’s attention that given the material raised with him in the s.359A invitation prior to the hearing, that is the Referral to the General Cancellations Network Cancellation Consideration document, the Visa Cancellation Referral Report, and the two Investigation Reports into LES Misconduct, indicates Mr C made payments to Officer A to obtain Student visas, this might tend to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and responded that he had no idea about it, he didn’t know Mr C and he only paid money to his friend to give to an agent. The applicant maintained that he never met Mr C and only saw his name in the investigative reports.

16. The applicant advised the Tribunal that his representative told him to tell the truth in relation to the review. He added that his representative noticed a pattern of documents being sent from Mr C to Petersen (aka Peter) to Tobe and then to himself. In one document Mr C apparently referred to himself as a ‘migration agent’ and a ‘school agent’. When asked by the Tribunal if he knew the whereabouts of Petersen now, the applicant did not know. He explained that he last knew Petersen lived in a house in a Brisbane suburb. Further, the applicant has a friend (whom the Tribunal shall refer to as Mr E) who is apparently a relative of Petersen. Mr E last told the applicant that Petersen lived in a house in a Brisbane suburb. The applicant advised that he previously lived in a house with Mr E, two other students from Nigeria (Mr F and Mr G), and Petersen’s younger brother. The applicant is not sure where Petersen’s brother is now. He thinks both Petersen and his brother are still in Australia, although he has not seen them in a long time.

17. The Tribunal indicated that the above matters raised with him might tend to suggest that his Student visa was obtained as a result of fraudulent conduct, the ground for cancelling his visa exists and that discretion should be exercised to cancel his visa. The applicant was invited to comment and responded that he is innocent. He indicated that he submitted his documents incorrectly and after receipt of the NOICC he has ‘followed the truth to prove his innocence’. He was disappointed when he saw the contents of his Student visa application and previously had no idea of the contents. The applicant advised that he would have met the criteria for the visa. He explained that Tobe is still in Australia and is an Uber driver. The applicant last knew Tobe to hold a Student visa and noted his visa was not cancelled. The applicant did not believe Tobe to hold Australian permanent residence or citizenship.

18. When asked by the Tribunal why he came to Australia on 9 May 2017 as reflected in the delegate’s visa cancellation decision, the applicant explained that he came to study and to get a good education with a respected certificate. The applicant’s mother wanted him to return to Nigeria to help set up affairs there. The applicant wanted to study Individual Support because his mother worked in the health sector in Nigeria. The applicant indicated that he wanted to return to Nigeria to assist his country. Following his period in immigration detention, the applicant applied for work and study rights as his partner was pregnant. In May 2018 he was granted work rights. The applicant explained that he was previously married in Nigeria but is now divorced. He has two children of this prior marriage and he attempts to keep in regular contact via video chat, although his former wife sometimes makes this difficult. The applicant last saw these two children about two years ago and he wants to travel to see them (they reside in the United Kingdom).

19. When asked by the Tribunal to outline his study history in Australia, the applicant indicated he was studying Individual Support when his visa was cancelled and he was detained. Upon his release from detention he applied for work and study rights as his partner was pregnant. The applicant advised that at that time he only had a two week placement remaining before he obtained his certificate. The applicant’s partner gave birth to their child in 2018. The applicant advised he did not receive study rights from the Department until May 2019 because of a delay from them. The applicant confirmed to the Tribunal that he never finished any course of study in Australia.

20. The applicant explained that for the most part he complied with the work limitation contained in his Bridging visa E. However, on one occasion around the time of the birth of his child to Ms D he exceeded his 40 hour per fortnight limitation because he required money to support his partner and child. He added that his mother also sent him some money and in May 2019 he obtained full work rights from the Department. The applicant advised that he is trying to save money to study for a Master’s Degree, however this is difficult as he must support his child.

1. When asked by the Tribunal of his future intentions, the applicant indicated he submitted a Partner visa application sponsored by Ms D in April 2019. He now has a Bridging Visa E associated with that application. The Tribunal raised with him that the aforementioned evidence might tend to suggest he is not intending to remain in Australia as a genuine temporary entrant for study, inviting his comment. The applicant responded that when he came to Australia he wanted to study, however he met Ms D and fell in love. He informed the Tribunal that a Doctor had indicated Ms D could not have children, but she unexpectedly fell pregnant and their child was born in 2018 (there is no corroborating medical evidence of this matter before the Tribunal).

2. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

   a.The Tribunal file at folios 23-38 contains his records of study, as at December 2017, from the Provider Registration and International Student Management System (PRISMS) indicating limited course completion by him.

3. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that at that time he had not demonstrated he had been in Australia as a genuine student. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant advised that he would respond straight away.

4. The applicant responded to the s.359AA information by indicating that whilst in Australia prior to his visa cancellation he was studying and up to date with his course fees and study requirements. He added that at that time he only had a two week placement remaining in his course. The applicant explained that following the visa cancellation he had no study rights and after being released from immigration detention he updated his address with the Department and applied for study and work rights on his Bridging Visa. The applicant maintained that he did not complete his course of study because he had a delay in receiving study and work rights which were granted to him in May 2019. According to the applicant, he regularly followed up with the representative about obtaining these rights and apparently the Departmental case Officer apologised to him for the delay in granting them. The applicant informed the Tribunal that he wanted to return to his course but had a child and fiancée (Ms D), although he has tried to save money to return to his studies. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

5. When asked by the Tribunal to outline his present circumstances, the applicant indicated that he loves his partner (Ms D). He outlined that their relationship commenced on 25 July 2017, approximately 2 months after his arrival in Australia. They met each other as they were then neighbours in the same unit complex. The applicant and Ms D commenced cohabitation on 21 October 2017 and had a child together born in 2018 (the child is now approximately 16 months old). The applicant advised that he has two other children to his former wife. They hold dual British and Nigerian nationality and reside in the United Kingdom with their mother. The applicant was married to his former wife in 2013 and obtained a divorce in 2016 in Nigeria. The applicant has never visited the United Kingdom, although his former wife and two children were all born there. His first child was born in 2012 (and is now aged 7 years) and his second child was born in 2014 (and is now aged 5 years). The applicant and his former wife previously spoke about moving to the United Kingdom, however he lost his employment, came upon poor financial times and the relationship ended. The applicant advised that his former wife is an assistant nurse and she financially supports their two children in the United Kingdom. He added that he ‘sometimes’ sends $100 (AUD) per month to these children.

6. The applicant holds a Bridging Visa E with full work rights. He admitted working in breach of his restricted work rights in the lead up to the birth of his Australian citizen child as previously outlined. The applicant maintained he had not otherwise breached any visa conditions. The applicant advised that his partner, Ms D, works as a security guard performing night patrol, a role she has held for around 7-9 years. Ms D had approximately 4 months leave after their child was born but has since returned to work full time. The applicant indicated that neither he nor Ms D receive Centrelink payments due to their combined income. Their child goes to day care when they are working. Ms D’s mother and sister reside in regional Queensland, and her father and brother are staying with them at present but are looking for other accommodation as this is a temporary arrangement.

7. When asked by the Tribunal if he had a compelling need to remain in Australia, the applicant responded that he does because he cares for his partner and their child. He added that he needs to support them. When asked by the Tribunal if he or anybody else would face hardship if his Student visa was cancelled, the applicant responded that his partner would because she would be unable to pay all of their bills, as would their child. He indicated that his partner would have to work more without him. The applicant also advised that his name would suffer, he wants to ‘clear his name’ and he seeks the visa cancellation to be overturned. He explained that Ms D’s father is a pensioner and her brother is in receipt of Centrelink payments because he lost his job. The applicant’s former wife last visited Nigeria with their two children in June 2017 when her mother died. She doesn’t plan to return to Nigeria according to the applicant. He seeks reinstatement of his visa so he can travel to the United Kingdom to see his two eldest children.

8. When asked if there were circumstances beyond his control that led to his visa being considered for cancellation, the applicant replied that there are as he ‘just based the application on trust’. He thought his documents for the Student visa application would go straight to the Department’s Brisbane office and he didn’t know of the online application or the Immi Account used for the application. The Tribunal raised with the applicant that given his level of education, that he just left his visa application in the hands of another and he didn’t check the application, those matters might tend to suggest the visa cancellation was not outside of his control, inviting his comment. The applicant replied that he trusted his family friend and is really angry with him. When asked by the Tribunal when he last saw Tobe, the applicant indicated it was around one month prior. When asked by the Tribunal why Tobe cannot shed any light on the applicant’s circumstances, the applicant advised that Tobe told him Peter (aka Petersen) was the agent and the applicant confronted Peter as previously outlined.

9. The applicant indicated he has always been truthful and cooperative with the Department and there are no secondary applicants on his visa subject to consequential visa cancellation. The Tribunal raised with the applicant that if his visa is cancelled, and he does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia, he would be liable to removal from Australia and he would likely face difficulties obtaining a new Australian visa in the future. The applicant was invited to comment and responded that he pleads for the Tribunal to consider that he didn’t make the online application. He indicated that what the others did with his application was wrong but his intentions were good. The applicant noted that he attended his school and studied after arrival in Australia. He advised that if he had ulterior motives then he would not have studied. The applicant then indicated that his circumstances changed when he met his partner. He advised that his father wants him to return to study once this situation is over.

10. The Tribunal informed the applicant that because he has children, one in Australia and two offshore, it is considering very carefully Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) that pertain to his circumstances. When asked if there were any other international obligations relevant to his case, the applicant advised that his partner had a miscarriage around one month prior to the review hearing. He then indicated there were no other international obligations he wished to make the Tribunal aware of.

11. When asked by the Tribunal if there is any reason he cannot return to Nigeria, the applicant advised that his plan is to visit Nigeria from time to time to give back to his country. He advised that his circumstances have changed, although his plan has not. The applicant indicated his mother wants to see her grandchild from Australia. The applicant also wishes to visit Nigeria to see his parents. He added that he would miss his family in Australia if his visa was cancelled. The applicant informed the Tribunal that he has not lied because he touched the Bible at the review hearing. He indicated that he wished he knew better regarding the circumstances in which his Student visa application came to be made.

12. When asked by the Tribunal if there were any other matters he wished the Tribunal to consider, the applicant replied that he wants his circumstances considered, he has given the same information since being detained and he has never broken the law in Australia or Nigeria. The Tribunal canvassed with the applicant whether any of his previous flatmates (that is Mr E, F and G) advised him that they had done anything wrong with their Student visa applications and he indicated they did not. The applicant indicated he has always told the truth. He informed the Tribunal that he had met other men from Nigeria in Australia who had their Student visas cancelled (Mr E, F and G) but they had since moved on. The applicant advised that nobody had done anything wrong to his knowledge, they had told him they did nothing wrong, but he can really only speak about what he did. He added that his representative did not attend the review hearing as he could not afford this. Prior to the conclusion of his oral evidence, the applicant confirmed there are no other matters he wished for the Tribunal to consider in his case.

13. The Tribunal also took oral evidence from the applicant’s partner, Ms D, which may be summarised as follows. She indicated that she has been in a de-facto relationship with the applicant since 27 July 2017. They have one child together born in 2018. She is aware that the applicant was previously married and has two sons residing in the United Kingdom. Ms D has spoken remotely to the applicant’s parents and siblings who reside in Nigeria. She advised the Tribunal that the applicant came to Australia to study and was a student of Individual Support until his visa was cancelled. Ms D added that he paid a lot of money for his study and never failed any courses.

14. Ms D works in the security industry and took around three months maternity leave when she had their child. She is now back at work because they are struggling financially. Her child participates in day care whilst she is at work, with the applicant picking up the child. Ms D’s father and brother are both residing with them on a temporary basis, although she and the applicant will move into their own separate residence shortly. She advised that her father can’t help care for their child as he becomes stressed and will be moving away shortly. Ms D told the Tribunal that if the applicant has to return to Nigeria she would go with him and take their child.

15. Ms D does not know how the applicant’s problems with his Student visa came about. She indicated she has a child and it is not her fault. Ms D maintained that she and the applicant are in a genuine relationship. Ms D added that the applicant did nothing wrong other than trust people. Following Ms D’s evidence, the applicant advised that their child needs its father, they have all been struggling, he made a mistake in trusting someone he shouldn’t have, he never did anything wrong and he wants help from the Tribunal.

16. The applicant further advised that he never completed the online Student visa application, he only knows about his own circumstances and cannot comment on others and he has done nothing wrong. Ms D added that she observed the applicant to be upset with his friends following his release from detention and he was particularly angry with Peter (Petersen). She advised his parents are in disbelief over what has happened. Ms D believes in the applicant and doesn’t know the circumstances of his other friends, other than that Tobe’s mother was a friend of the applicant’s mother. The applicant confirmed to the Tribunal that he had no further evidence to provide before the review hearing concluded.

    The ground for cancellation exists

17. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(g) of the Act exists. The prescribed ground in r.2.43(1)(o) provides, ‘that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.’ Departmental policy regarding the aforementioned prescribed ground indicates:

    Scope - Fraudulent conduct

    The prescribed ground for cancellation in regulation 2.43(1)(o) is that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

    'Fraudulent conduct' is not defined in the Act or Regulations. The Macquarie Dictionary defines fraud as "advantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false".

    'Any person' means the visa holder or any other person, including a departmental employee.

    Reasonable suspicion that a visa has been obtained as a result of fraudulent conduct

    The delegate must reasonably suspect that the visa was obtained as a result of the fraudulent conduct of any person. That is, it is not enough to reasonably suspect that there was fraudulent conduct by a person - the delegate must reasonably suspect that if it were not for the fraudulent conduct the visa would not have been granted.[1]

    [1] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’.

18. The Tribunal notes that the ordinary English language meaning of ‘fraud’ is recorded in the Macquarie Dictionary (online edition) as involving:

    deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.[2]

    [2] Macquarie Dictionary (online edition), accessed 6 September 2019.

19. Accordingly, the Tribunal forms the view that the term ‘fraudulent conduct’ is that which contains the character described in the above dictionary definition (for example, that involving an element of deceit seeking to gain an unfair advantage). Further, having regard to the guidance in Departmental policy, the Tribunal considers that when assessing the relevant ground for visa cancellation through the lens of the term ‘reasonably suspects’, a causal link is required between the obtaining of the visa and the fraudulent conduct of any person, in order to enliven that ground. Having regard to the judicial remarks of Justice Bromberg in the matter of Patel[3], the Tribunal notes that it is not necessary for the decision maker to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct.  

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

20. Regarding the term ‘reasonably suspects’, the Tribunal notes the judicial guidance establishing the following principles. It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient[4]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[5] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[6] 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.[7] The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[8] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[9] 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.[10] The required state of mind is suspicion, not belief, so that the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[11]

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

    [5] 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.

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

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

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

    [9] Ibid.

    [10] 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].

    [11] Guo v Commonwealth of Australia [2017] FCA 1355 at [35].

21. The Tribunal notes that in submissions on behalf of the applicant it was contended that a prior decision of the Tribunal (differently constituted) in the matter of Odinkaeze[12] is ‘close to identical’ to the present application for review regarding the assessment of whether the ground for visa cancellation exists. Whilst the Tribunal has paid due regard and respect to this prior decision, it is not binding with respect to the present review and, in any event, the facts are distinguishable between the two matters. For example, in the earlier matter there is no evidence of the involvement of Mr C, whereas in the present matter the applicant has submitted evidence that Tobe liaised with Petersen, who in turn liaised with Mr C in relation to his Student visa application. Ultimately the Tribunal (differently constituted) in Odinkaeze, assessing the particular evidence before it and making findings of fact accordingly, reached the conclusion that it was not satisfied of a causal link between the obtaining of the visa and the fraudulent conduct of any person. The task for the Tribunal in the present review is to assess the particular evidence before it and make its own findings based upon such evidence.

    [12] Odinkaeze (Migration) [2018] AATA 1295.

22. Having paid careful consideration to the evidence in the present matter, the Tribunal reasonably suspects that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer B for the reasons that follow. As previously outlined, the Tribunal raised elements of the investigative reports with the applicant utilising the provisions of s.359A and s.359AA of the Act. When considered holistically, it is apparent that the applicant was considered a ‘high risk’ Student visa applicant due to his Nigerian nationality and accordingly his visa application should have been processed with the additional scrutiny outlined in the document ‘Student visa Assessment methodology’, by a Departmental Officer (including LES) with formal authority to do so in accordance with the established procedures outlined in the investigative reports. The Tribunal accepts the conclusions reached in the investigative reports that Officer B lacked the formal authority to process the applicant’s Student visa application and that Officer A lacked formal authority to assign this application to the former. It is worth pausing to reflect that the aforementioned Officers (LES) were not formally assigned to process Student visa applications at the time they did so in relation to the cohort examined in the investigative reports and neither disputed this position.

1. The Departmental Subject Matter Expert audit of the applicant’s Student visa application revealed that, at the time the visa was granted on 24 April 2017, the application was deficient in several respects including that he was unemployed and there was no evidence of him having employment to return to in Nigeria, and no sponsor letter was provided to indicate he had access to the financial sponsor’s funds. If established Departmental processes were followed, such omissions would have prevented the grant of the Student visa at that time without further checks being performed. Accordingly, the Tribunal is satisfied that the applicant’s Student visa application was lacking the information ordinarily required in accordance with established Departmental procedures at the time his visa was granted by Officer B, who acted without formal authority to do so. In reaching the aforementioned conclusion, the Tribunal has duly considered the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, his Statutory Declaration dated 6 September 2017, his Statutory Declaration dated 28 May 2019, educational records, an English language test result, confirmation of health insurance, confirmations of enrolment (COE), identity documents, the financial records of Mrs Ogiugo (the financial sponsor), and a letter from the financial sponsor). Some weight is afforded by the Tribunal to this material, however, its submission post-visa grant does not displace the conclusion that the applicant did not furnish sufficient evidence to the Department to demonstrate that he satisfied the criteria for the grant of the Student visa at the time it was granted by Officer B, who acted without formal authority and in contravention of established Departmental procedures to make the grant.

2. Additionally, the Subject Matter Expert raised concerns that the Genuine Temporary Entrant (GTE) statement was similarly worded to the statements of others granted Student visas by Departmental Officers suspected of granting visas improperly. The investigative reports conclude that Officer A received corrupt payments from Mr C and further that Officer A assigned several visa applications to Officer B for processing without formal authority to do so. The applicant submitted evidence to the Tribunal indicating that Tobe liaised with Petersen, who in turn liaised with Mr C, in relation to his Student visa application, albeit without his knowledge. The investigative reports also concluded that Officers A and B colluded during the investigation into their alleged activities and both were found to have acted improperly in breach of their conditions of employment. Further, the investigators found portions of Officer B’s evidence to be inconsistent and implausible.

3. Having regard to the above matters, the Tribunal does not accept the contention advanced by the applicant that Officer B was processing Student visa applications merely to increase her statistical output. Nor does the Tribunal accept that, at the time the applicant was granted his Student visa, he had furnished the Department with the material required to have satisfied the criteria for grant of that visa in light of established Departmental procedures. If those procedures were followed correctly, the applicant’s visa could not have been granted by Officer B who lacked formal authority to make the grant. The Tribunal places high weight upon the evidence and findings contained in the investigative reports, including the established Departmental procedures outlined, given their official nature, content and lack of persuasive evidence to disturb their veracity. On balance, the Tribunal reasonably suspects that the applicant’s Student visa was obtained as a result of the fraudulent conduct of Officer B (noting that the element of deceit seeking to gain an unfair advantage, and a causal link between the conduct and visa grant, are present).

4. The Tribunal notes that the applicant passionately maintained his lack of culpability in relation to the evidence pointing to the improper actions of Officers A and B, Mr C, Petersen and Tobe. The Tribunal developed serious concerns with the credibility of the applicant during the review hearing due to his account of continued reliance upon Tobe, even when he refused to permit him contact with ‘the agent’ in Australia and sharply increased the price for assisting with his Student visa application shortly before sending him the confirmatory documents, and his explanation regarding Tobe’s inability to shed much contemporary light on his visa application whilst having been in recent contact with him in Australia. However, in relation to the assessment of whether the ground for visa cancellation exists, for reasons previously outlined, it is unnecessary for the Tribunal to be satisfied that the applicant has been involved in or is aware of the fraudulent conduct.

5. The Tribunal notes that the applicant denied completing the online Student visa application. On balance, the Tribunal is prepared to accept that he did not directly make entries in the online visa application form. Therefore, the Tribunal is prepared to accept that the applicant provided information to Tobe who arranged for the visa application to be lodged by Petersen in connection with Mr C, without the applicant actually preparing the online application himself or being personally involved in fraudulent conduct. However, whilst the aforementioned matters weigh against cancellation of the applicant’s visa, the Tribunal does not accept they are persuasive indicators of an absence of fraudulent conduct regarding the grant of the visa.

6. For the reasons expressed above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

7. 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’.

8. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

9. The applicant’s background has been detailed above. He arrived in Australia as the holder of a Subclass 500 Student visa on 9 May 2017. The applicant’s visa would have been due to expire on 31 October 2019 had it not been cancelled on 13 October 2017. The Tribunal accepts that whilst in Australia the applicant was a student in Individual Support until his Student visa was cancelled and that he came to this country for the purpose of study. The aforementioned matters weigh against the cancellation of his Student visa. However, he has never completed a course of study in this country, he has not resumed his studies and the Tribunal is not satisfied that he genuinely intends to study again in Australia in the short term. This is because during his oral evidence, the applicant was equivocal and vague about his future study intentions and suggested that supporting his partner and child took priority over further study due to financial constraints. The Tribunal accepts the applicant had a ‘no study’ condition (Condition 8207) placed upon his Bridging Visa E for some time, and according to him it has only recently been lifted. However, the aforementioned matter does not disturb the Tribunal’s view that the applicant does not genuinely intend to study again in Australia in the short term given the thrust of his evidence regarding his intentions.

10. Simply put, the bulk of the evidence before the Tribunal points to the applicant seeking to remain in Australia to work in order to financially support his partner and their child. This is clear from the applicant’s admission that he has previously worked in excess of the work limitation placed upon his Bridging Visa and his focus in oral evidence on his requirement to remain employed. Further, the Tribunal notes that the applicant has been sponsored for an onshore Partner visa by Ms D which, in the context of the weight of evidence, is inconsistent with his objective in this country being to continue his studies. The Tribunal also notes that there is a dearth of contemporary documentary evidence to support the applicant’s assertion that he has plans to resume study in the short term. On balance, following careful consideration, the Tribunal does not accept that the purpose of the applicant’s stay in Australia at the time of this decision is to be a genuine temporary entrant for study, which was the purpose for which his Student visa was originally granted. Accordingly, the Tribunal finds that this factor weighs in favour of cancelling the applicant’s Student visa.

11. The Tribunal has also carefully considered the applicant’s extent of compliance with visa conditions. The Tribunal notes that the applicant admitted to working in excess of the work limitation imposed upon his initial Bridging Visa E (Condition 8104) as previously outlined. In the view of the Tribunal, this factor weighs in favour of cancelling the applicant’s Student visa. It does so because it demonstrates the applicant’s willingness to breach the known condition and it buttresses the view of the Tribunal that the applicant’s primary purpose for remaining in Australia following the cancellation of his Student visa has been to work in order to financially support his partner and their child.

12. The Tribunal has also had regard to the circumstances in which the ground for visa cancellation arose. For reasons previously outlined, the Tribunal reasonably suspects that the applicant’s visa has been obtained as a result of the fraudulent conduct of Officer B which has enlivened the ground of visa cancellation. The manner in which the applicant’s Student visa was granted in contravention of established Departmental procedures greatly undermines the integrity of the Australian visa system and the Student visa program in the view of the Tribunal. This is a factor which weighs in favour of cancelling the applicant’s visa.

13. The Tribunal notes that the applicant maintains he was not involved in any fraudulent conduct in relation to him obtaining the Student visa. Whilst the Tribunal developed some concerns with the credibility of the applicant as outlined above, it is prepared to accept that he was not himself involved in any fraudulent conduct and this weighs against the cancellation of his visa. However, the Tribunal does not accept that the ground for visa cancellation arose due to circumstances beyond the applicant’s control for the following reasons. The applicant is an educated individual who chose to pay money to Tobe for his assistance and to continue to rely upon him even when, on his own evidence, that individual appeared to be acting in an untoward fashion by denying him contact with ‘the agent’ in Australia and requesting extra money shortly prior to sending through the confirmatory visa documentation.

14. On his own evidence, the applicant failed to perform any review of his visa application at all, rather he just sent material to Tobe. The Tribunal does not accept the contentions of the applicant that his trust in Tobe, fostered by the relationship between their respective mothers’, and his unfamiliarity with the visa application process and overseas travel, demonstrate the ground for visa cancellation arose due to circumstances beyond his control. This is because the applicant failed to perform even a cursory review of his Student visa application.

15. The Tribunal accepts that the applicant will face some hardship if his Student visa is cancelled given he will lose the opportunity to complete any study within Australia in the near future. However, the Tribunal is unconvinced that the applicant has bona fide plans to study in Australia in the short term so the loss of that opportunity, whilst weighing against the cancellation of his Student visa, does so only marginally. The Tribunal accepts that the applicant and his family members will feel some upset at the situation if his visa is cancelled, noting the applicant advised that his family made great sacrifices to send him to Australia (for completeness, the Tribunal also notes there is no medical evidence before it to indicate any of the applicant’s family members would face psychological harm if the visa is cancelled). The Tribunal also accepts that the applicant will face some emotional hardship if he is unable to ‘clear his name’ and that his parents will be disappointed if he cannot return to his studies in Australia in the near future if his visa is cancelled. The aforementioned matters weigh against cancellation of the applicant’s Student visa.

16. The Tribunal notes that the applicant and Ms D claim to be in a de facto relationship and they have one child together. The Tribunal accepts they will face financial and emotional hardship if they are separated as a result of visa cancellation, noting that the relationship commenced approximately two months after the applicant’s arrival in Australia whilst he was the holder of a temporary Student visa. The Tribunal accepts that Ms D suffered a miscarriage, is in straitened circumstances and the applicant assists with the care of their child therefore enabling her to remain fully employed. These are matters that demonstrate the applicant is providing support to Ms D. The Tribunal also accepts that Ms D may not be able to be employed in the same capacity if she is separated from the applicant due to considerations with caring for their child. The aforementioned matters weigh against cancelling the applicant’s Student visa. For completeness, there is no medical evidence before the Tribunal to indicate that the applicant, Ms D or their child will face psychological harm if the applicant’s visa is cancelled.  

17. The Tribunal also notes that Ms D indicated if the applicant had to depart Australia then she and their child would depart with him to Nigeria. The Tribunal accepts that if this choice was made then significant disruption and hardship to all of their lives would be incurred. The aforementioned matters weigh against cancelling the applicant’s Student visa. 

18. The Tribunal accepts the applicant has lodged a Partner visa sponsored by Ms D which may be impeded by cancellation of his Student visa (which will be examined in further detail below) and this will cause hardship to them. On balance, the Tribunal considers that the hardship to the applicant, Ms D and their child regarding the aforementioned matters weighs against cancellation of the Student visa. The Tribunal also accepts that Ms D’s family members will feel some upset if the applicant’s Student visa is cancelled and this weighs against cancellation of the visa.

19. The Tribunal accepts that if the applicant’s Student visa is cancelled and he does not hold a valid visa he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia and he would be liable to removal from Australia. Further he would likely face difficulties obtaining a new Australian visa in the future, including by way of facing an exclusion period as a result of a Student visa cancellation. This would impede the processing of his onshore Partner visa application sponsored by Ms D and he may have to lodge an offshore Partner visa application in the future. The Tribunal finds that such matters will result in emotional and financial hardship for the applicant, Ms D and their child. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

20. The Tribunal has also considered whether the applicant has a compelling need to remain in Australia. The expression ‘compelling need’ is not defined for the purposes of considering the exercise of discretion in the present review. The Tribunal notes and pays regard to the ordinary English language meaning of ‘compel’ as recorded in the Macquarie Dictionary (online edition):

    ‘to force or drive, especially to a course of action.’[13]

    [13] Macquarie Dictionary (online edition), accessed 6 September 2019.

21. Given that the applicant has not completed any course of study in Australia and has not enrolled in or committed funds to any future study, combined with the evidence previously outlined which suggests that study in this country is not his primary objective, the Tribunal is not satisfied that his vague future study plan presents a compelling need for him to remain in Australia. Further, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia on account of his relationship with Ms D and their child together. This is because they embarked upon the relationship shortly after the applicant arrived in Australia, in the knowledge that he held a temporary Student visa. Whilst the Tribunal accepts that the applicant’s onshore Partner visa application may be impeded by an exclusion period if his Student visa is cancelled, and that he would likely need to rely upon an offshore Partner visa application if he wished to pursue that pathway, it is not satisfied that the circumstances of his relationship with Ms D present a compelling need for him to remain in Australia. Additionally, the presence of a child of the relationship, in the absence of compelling circumstances in the view of the Tribunal, does not create a compelling need for the applicant to remain in Australia when his circumstances are viewed globally. Therefore, the Tribunal considers that the absence of a compelling need for the applicant to remain in Australia weighs neither in favour of, nor against, cancellation of his Student visa.

22. The applicant has one Australian citizen child aged approximately 16 months. The Tribunal accepts the evidence suggesting that the best interests of this child favours the applicant’s Student visa not being cancelled. The Tribunal accepts that the applicant plays a meaningful role in the child’s life and that he financially supports the child and picks the child up from day care regularly. The Tribunal accepts that the applicant, Ms D and their child will face emotional and financial hardship if the applicant’s Student visa is cancelled. The aforementioned matters weigh against cancellation of the visa.

23. The Tribunal accepts that the applicant has two children resident in the United Kingdom who are dual British and Nigerian citizens. The Tribunal accepts that the applicant provides some limited financial support to these children, however it finds that the former wife of the applicant (the mother of these two children) provides the bulk of the financial support to them as indicated in the applicant’s own oral evidence. The Tribunal accepts that if the applicant’s Student visa is cancelled that may impose difficulties for him visiting the United Kingdom. Accordingly, the Tribunal accepts that the applicant’s two eldest children and their mother will face some financial and emotional hardship if his Student visa is cancelled (for completeness, the Tribunal also notes there is no medical evidence before it to indicate either of these children or their mother would face psychological harm if the visa is cancelled). The aforementioned matters weigh against cancellation of the visa.

1. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant and his three children, and which weighs against cancellation of the visa. The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

2. The Tribunal accepts there is no evidence before it of adverse past or present behaviour by the applicant towards the Department of Immigration (now entitled the Department of Home Affairs) and this matter weighs against cancellation of his Student visa.

3. There are no other individuals attached to the applicant’s Student visa who would receive a consequential visa cancellation if his own visa were cancelled and there are no circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing as previously outlined. The aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Student visa.

4. There is no evidence before the Tribunal indicating that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation. The applicant has made no claims regarding non-refoulement or an inability to return to Nigeria for reasons of facing harm or any other serious concern for his welfare. Indeed, the applicant in oral evidence confirmed his intention to return to Nigeria when he is able to in order to visit his parents and ‘assist his country’. The Tribunal has duly considered the CROC and ICCPR, as outlined above, and is satisfied that no breaches of Australia’s obligations pursuant to the aforementioned international agreements will arise if the applicant’s Student visa is cancelled, having carefully considered those obligations. The aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Student visa.

5. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there are any other relevant matters weighing either in favour of, or against, cancellation of his visa.    

   CONCLUSION

6. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s Student visa. The Tribunal has carefully reflected upon the above mentioned factors and it has considered the applicant’s claims individually and cumulatively. Several factors have been found by the Tribunal to weigh against the cancellation of the applicant’s Student visa, as outlined above. The Tribunal is cognisant that ‘the best interests of child’ is a primary consideration, which in the applicant’s case weighs significantly against cancelling his visa, as does the right of the applicant, Ms D and their child to remain as a family unit. The hardship faced by the applicant and these immediate family members also weighs significantly against the cancellation of the applicant’s Student visa. However, the aforementioned factors must be carefully balanced with those in favour of the visa cancellation.

7. The circumstances in which the ground of visa cancellation arose cause most serious concern for the Tribunal. As previously outlined, these circumstances arose in the context of a reasonable suspicion that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer B. The Tribunal considers that the conduct identified in the investigative reports greatly undermines the integrity of the Australian visa system and the Student visa program. It strikes at the heart of the Australian Government’s ability to admit non-citizens into the country in an orderly fashion. In the view of the Tribunal, the circumstances in which the ground of visa cancellation arose weigh very strongly in favour of the visa cancellation.

8. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those to the contrary.

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

   DECISION

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

    K. Chapman
    Member