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

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.
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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 6605
Decision Date: 6 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Ireye, against the cancellation of his Subclass 500 (Student) visa. The cancellation was based on the ground that the delegate reasonably suspected the visa had been obtained as a result of fraudulent conduct, specifically relating to the conduct of a locally engaged Departmental employee in Pretoria who allegedly lacked the authority to process the application and failed to apply appropriate assessment processes. The applicant contended he was an innocent party, unaware of any fraudulent conduct, and that discretionary factors, including hardship to his Australian citizen de facto partner and child, should lead to the visa not being cancelled.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(o) of the Migration Regulations 1994 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The legal issues involved assessing the applicant's knowledge or involvement in any fraudulent conduct, the integrity of the student visa program, and the weight to be given to discretionary factors such as hardship.

The Tribunal found that the delegate had a reasonable suspicion that the visa was obtained as a result of fraudulent conduct, satisfying the ground for cancellation. In considering the exercise of discretion, the Tribunal acknowledged the applicant's submissions regarding hardship and his initial purpose of study. However, it found that the applicant's evidence regarding his future study intentions was equivocal and vague, and that the bulk of the evidence indicated a desire to remain in Australia to work and support his partner and child. The Tribunal also noted the sponsorship for an onshore Partner visa and the lack of contemporary documentary evidence supporting plans to resume study. Applying the principle that decision-makers attribute weight to evidence as they see fit, the Tribunal concluded that the applicant was not a genuine temporary entrant for study, and this weighed in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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? 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. 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the Student visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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 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 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]. 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. 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.