Maduagwu (Migration)

Maduagwu (Migration) [2024] AATA 3194 (6 August 2024)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ikenna Nnamdi Maduagwu
CASE NUMBER:  2303177
HOME AFFAIRS REFERENCE(S):          BCC2021/1356350
MEMBER:Kate Millar
DATE:6 August 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:
·Public Interest Criterion 4020 for the purposes of cl 491.211 of Schedule 2 to the Regulations

Statement made on 06 August 2024 at 10:56am
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Glazier – bogus document – Nigerian bank account statements – false or misleading information – work reference – waiver of requirement – compelling or compassionate circumstances affecting Australian citizens – employment as a disability support worker – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211; Schedule 4, PIC 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Mr Maduagwu is a citizen of Nigeria who first came to Australia in 2016 as a student. He applied for a Skilled Work Regional (Provisional) (Class PS) visa on 3 July 2021 the basis of his skills as a glazier. In his visa application, he claimed to have at least 36 months of overseas employment experience as a glazier in the period June 2011 to June 2021.
His visa application was refused by a delegate of the Minister for Home Affairs because the delegate found there was evidence that Mr Maduagwu had provided bogus documents in the form of Nigerian bank account statements showing deposits of purported wages from Stainless Villa Fabrications, and false or misleading information in a work reference from Stainless Villa Fabrications. These documents and the information contained in them are relevant to his experience as a glazier.
Mr Maduagwu argues that these are not bogus documents and that he has not provided false and misleading information. In the alternative, he submits that, if he has provided impugned documents or information, there are compassionate or compelling reasons that affect the interests of Australian citizens that justify the grant of the visa.
Mr Maduagwu appeared before the Tribunal on 10 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Maduagwu’s friend Ms Jamila Hussain, and parents of children for whom he provides care, Ms Anita Joslin and Ms Alicia Brown.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the on 27 February 2023 to refuse to grant Mr Maduagwu a visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Mr Maduagwu applied for the visa on 3 July 2021, and the requirements for the grant of a Subclass 491 visa at that time are set out in Part 491 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Maduagwu did not meet the requirements of cl 491.211 of Schedule 2 of the Regulations because he did not meet Public Interest Criterion 4020 (PIC 4020).
The issue in this review is whether Mr Maduagwu meets PIC 4020 as required by cl 491.211. As it applies to Mr Maduagwu, PIC4020 requires that:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) ..
This requirement may be waived in accordance with PIC 4020(4) where the Minister, and the Tribunal in the place f the Minister, is satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
The first issue to be decided is whether there is no evidence Mr Maduagwu has provided a bogus document or information that is false or misleading in a material particular.
Has Mr Maduagwu provided a bogus document?
The term ‘bogus document’ is defined in s 5 of the Act as:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
It is not necessary to having “knowing complicity” on the part of a visa applicant for PIC 4020 to be met,[1] however the documents must have the necessary quality of purposeful falsity, whether or not the applicant has knowledge that the information is untrue.
[1] Ibid [43] and [49].
Mr Maduagwu was asked to provide further information to establish his claims that he had 3 years of overseas employment as a glazier. He provided bank statements for an account with account number ending 9974 from the United Bank of Africa (UBA) showing monthly deposits from “Stainless Villa Fab.” for the periods:
·     2 October 2013 to 29 December 2013;
·     2 October 2014 to 28 December 2014;
·     2 October 2015 to 28 December 2015; and
·     2 January 2016 to 29 March 2016.
According to the decision record, the Department referred the bank statements to the United Bank of Africa, which advised that the account statement of Mr Maduagwu with the account number ending in 9974 is forged. I could not locate in the Department file an original advice that the document was forged, but did locate the following text as a file note:
UBA BANK STATMENTS FOR MADUAGWU, Ikenna N
The bank statements were referred to UBA Bank in Nigeria.
They responded – “The attached statement of account [9974][2] in favour of MADUAGWU IKENNA NNAMNDI IS CONFIRMED forged.”
[2] Complete account number redacted by the Tribunal.
REFERRAL OUTCOME: NON-GENUINE
In response to this information, Mr Maduagwu provided a police report in which is it alleged the account officer at UBA falsely said he could print out old dormant account statements for Mr Maduagwu as evidence of his employment history, and that he had been a victim of forgery.
Mr Maduagwu provided evidence to the Tribunal that he holds a UBA account with an account number ending 9974. This was:
·     An undated letter on a letterhead with the UBA logo providing a confirmation of Mr Maduagwu holding account ending 9974.
·     Two transaction receipts showing transfers to Mr Maduagwu at the UBA into account ending 9974.
·     Various screen shots of his interactions with the UBA over social media seeking evidence that he held this bank account. A screen shot which states it is a chat with “@UBACares” states that account ending 9974 active but account ending 8879 is closed.
There are two separate questions being contemplated in the material. The first is whether Mr Maduagwu holds a UBA account ending 9974, and the second is whether the account statements he provided are bogus documents as defined by s 5 of the Act.
In answer to the first question, I am satisfied that Mr Maduagwu holds an account with UBA ending 9974.
While Mr Maduagwu has established he held the account in question, he has not addressed the question of whether the bank statements he provided were bogus.
The definition of a bogus document requires a reasonable suspicion that the statements are, in this case, counterfeit or have been altered by a person who does not have the authority to do so. In this context counterfeit is a document that is not the real thing[3] or is a fraudulent imitation of something.
[3] Trivdei v Minister for Immigration and Border Protection [2014] FCAFC 42 at [50].
The source documents showing how the account statements were referred to the UBA and the form in which advice was sought from the UBA is not contained in the information before me, and what I have is a file note recording that the UBA reported the documents are bogus. This has lesser evidentiary value because it is not the primary source of the information.
After being asked to comment on the information that the bank account statements were bogus, Mr Maduagwu reported an alleged forgery to Nigeria Police by the person who provided him with the documents. The police report states that a man who was supposedly working as a staff member of UBA said he could access a dormant account and print statements from previous years, but that the documents he provided were fake. Mr Maduagwu reports that he used this person’s services because reaching the UBA from Australia was impossible. This report acknowledges a purposeful falsity to the documents.
On the basis of the report of the Department and the police report lodged by Mr Maduagwu, I consider there is a reason to suspect that the documents provided by Mr Maduagwu are counterfeit, and that they meet the definition of bogus documents. Mr Maduagwu provided these documents to the Department.
It follows that the ground in PIC 4020(1) is established.
Has Mr Maduagwu provided information that is false and misleading in a material particular?
While the ground in PIC4020(1) has been established, it is relevant to the exercise of the discretion to waive these requirements whether Mr Maduagwu has provided other information that is false and misleading in a material particular. This requires an examination of whether an employment reference from Mr Erekorsima Tamuno is false and misleading.
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) as information that is false or misleading at the time it was given; and that is relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The requirements in cl.491.216 of Schedule 2 of the Regulations include a points test for the visa where points are attributed for factors such as age, marital status, level of English, highest level of education, and work experience. Mr Maduagwu’s experience as a glazier in Nigeria is relevant to the points he can obtain towards a skilled visa, and information about his work experience outside Australia as it is relevant to the assessment of his visa application is a material particular.
In his application, Mr Maduagwu claimed that he scored 5 points for overseas employment experience of at least 36 months in the 10 years prior to the invitation. The invitation date specified in Mr Maduagwu’s visa application is 18 June 2021, and the relevant 10 year period is 17 June 2011 to this date.
Mr Maduagwu said he first started glazing for income while he was going to school because his friend had an uncle who was a glazier. His friend’s uncle decided to make the formalise this employment as an apprenticeship, and he worked as an apprentice while he was studying. Mr Maduagwu provided a copy of the apprenticeship agreement.
With his visa application, Mr Maduagwu provided a reference dated 3 June 2019 from Mr Tamuno on a letterhead of Stainless Villa Fabrication stating Mr Maduagwu joined Stainless Villa as an apprentice on 20 September 2007, and that after his apprenticeship he was employed as a full-time glazier from 9 March 2009 to 15 April 2016.
In his application, Mr Maduagwu states he studied a Bachelor of Engineering from the University of Port Harcourt with his study being from 4 November 2008 to 13 July 2014. His academic transcript shows he studied a number of subjects for engineering over 5 years. He also provided a certificate from Rivers State University in project management dated 10 December 2014. This study calls into question his claim to have worked full time in the period 2009 -2016.
This reference from Mr Tamuno was referred for verification. The file note from the Department records there are no internet records for the company or the managing director, and there is no listing on the company registration website.
A Departmental file note records a call to the telephone number listed on the reference. The phone was answered by Mr Tamuno who was asked if he knew Mr Maduagwu. Mr Tamuno answered that Mr Maduagwu did an apprenticeship for his company in 2007 but he could not remember for how long. Mr Tamuno said the company does glass installation and that Mr Maduagwu was a team member who installed glass windows and doors. Mr Tamuno could not state the company’s website address and when told that the address did not exist said that caller must check the website. He was asked the address of the company, when he said he could not hear, at which point the call ended.
On being invited to respond to this information, Mr Maduagwu said that Mr Tamuno told him that he was being asked personal questions while at work which made him suspicious and poor network connection ended the call. Mr Maduagwu said he contacted the administration officer who worked with Mr Tamuno in the past who said that Mr Tamuno’s level of education and exposure made it difficult for him to understand the complexities of being a referee. He said the reason the company address was not on google was because the company moved three times due to financial difficulties and did not survive post COVID.
It does not appear from the decision record that the delegate concluded this reference was a bogus document, and instead stated a lack of satisfaction about the truthfulness of Mr Maduagwu’s claims to have been employed by Stainless Villa Fabrications.
Mr Maduagwu has provided additional information in support of the employment reference, and an explanation for Mr Tamuno’s responses.
This includes a letter from Mr Oluka Oluka which states Stainless Villa Fabrication has not been in operation since 2020, but that the attached google item from “VConnect” shows evidence of an online presence. A screenshot of an internet site with details of the company were attached. In the absence of information on what “VConnect” records, or the validity of this source I place little weight on this record.
A letter dated 12 June 2023 from Mr Tamuno states he could not give a definite answer about the website because they did not have a website and the company instead relied on local networks for contracts. He specifies the addresses at which he says the company operated before it ceased operation in 2020. He claims the call disconnected because he entered an elevator and he tried to call back but was unsuccessful.
Mr Maduagwu provided a reference from Installed Pty that states in the period 12 July 2016 to 20 January 2018 Mr Maduagwu worked as a volunteer to assist in the installation of shower screens, balustrades, pool fences and glass door and windows. He provides invoices addressed to a business called Installed by James from 1 June 2018 as well as pay advice showing he was employed with Living Glass as a casual glazing installer from 27 August 2018. Mr Maduagwu obtained a Certificate III in Glass and Glazing in March 2019, with much of the certificate obtained by recognition of prior learning.
While two years of voluntary work experience before working as a glazier in Australia, does not necessarily support Mr Maduagwu’s claims to have worked as a glazier in Nigeria, he did specify in his application for the skills assessment that the training he had in Australia is different to the work he did in Nigeria. On balance, I consider his work as a glazier in Australia supports that he had experience in the field before arriving in Australia as he has claimed.
While the decision of the delegate refers to there being no listing on the company registration website in Nigeria, I do not have information on whether a record should have existed at the time it was checked if the company was no longer operating.
The Trades Recognition Authority, in advising that Mr Maduagwu’s application for Trades Recognition was successful, found he was first able to commence work in the skilled occupation of glazier from 22 April 2011. The Trades Recognition Authority advice is on the letterhead of the Department of Education, Skills and Employment and states it is an assessment under the TRA Migration Skills Assessment Program. This shows that the TRA, which is charged with conducting these assessments, considered Mr Maduagwu could work as a glazier from 2011.
Mr Maduagwu has pursued qualifications and skills as a glazier in Australia, and I accept he has relied on prior experience as a glazier to do so which was accepted by the Trades recognition Authority. I accept that he has worked as a glazier in Nigeria, and I am not satisfied he has provided false and misleading information in the reference from Mr Tamuno of Stainless Villa Fabrications.
Should the requirements of PIC 4020(1) or (2) be waived?
Under PIC 4040(4), the requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the grant of the visa.
Mr Maduagwu relies on compassionate or compelling circumstances affecting Australian citizens who he supports either as a friend or in a paid capacity as a disability support worker. I must first consider if there are compelling or compassionate circumstances affecting these Australian citizens, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
Mr Maduagwu works as a disability support worker in addition to his work as a contract glazier and provides support to two Australian citizen children with severe disabilities. He provided statements from the parents of two children he supports, Ms Alicia Brown and Ms Anita Joslin, and both Ms Brown and Ms Joslin attended the hearing by Microsoft Teams to give oral evidence.
Ms Joslin’s son is 10 years old and has complex autism. He is in voluntary out of home care, and Ms Joslin is his legal guardian and arranges his care. She said Mr Maduagwu has supported her son for four years as a disability support worker and provides daily living support and assisting to build his capacity to participate in the community. Mr Maduagwu works with her son on Sundays from 8am to 4pm, increasing his shifts in the school holidays. He does some extra shifts during the weeks between 9 and 15 hours. Ms Joslin said Mr Maduagwu has been a good fit for her son, and they have had considerable recruiting and retaining staff in this role. She said her son trusts Mr Maduagwu and while he has not attended school for a period, he is open to returning to school with Mr Maduagwu’s support. She said at a practical level Mr Maduagwu would be difficult to replace due to the difficulty in recruitment. Any change creates anxiety for her son, and he struggles with adjusting to change due to his disabilities. This will cause difficulty if Mr Maduagwu is not available.

Ms Brown said Mr Maduagwu has been working with her daughter from 2021 as a support worker, generally overnight and on Saturdays. Ms Brown said they have a unique relationship and rapport, and her daughter’s willingness to do physical rehabilitation is greater with Mr Maduagwu. Ms Brown said her daughter cannot be left alone as her conditions make this dangerous, and her daughter requires a person with her when she is in hospital as the staff are not available for one-to-one care. If her daughter is in hospital, Mr Maduagwu will stay with her so Ms Brown can have a break and sleep. Ms Brown said that if Mr Maduagwu were not available it places her in immediate difficulty as it is difficult to find suitable night workers as they require considerable training in her daughter’s care to work alone at night. If he was unavailable at short notice her daughter would have to be admitted to hospital.
Mr Maduagwu provides support to Ms Jamila Hussain who also attended the hearing to give evidence. Ms Hussain says they have been good friends since they met in 2021, and Mr Maduagwu helps her by talking through issues when she needs help. She suffers from depression and previously also worked in disability service. Ms Hussain said that if Mr Maduagwu is not granted a visa, it will damage her mentally. She said her children, who live with their grandmother because of her work situation, rely on Mr Maduagwu. Mr Maduagwu has helped her with a number of things including a recent court case and changing the tyre on her car.
He said other Australian citizens affected by the decision include Ms Ruth Okoro, who he assists with her children, and Ms Julie Cartlege who he describes as being his Australian mother. Ms Okoro is a migration agent who assisted him with his visa application when relocated to South Australia to seek a regional skilled visa.
I consider Mr Maduagwu’s role as a support worker for Ms Joslin and Ms Brown’s children, his rapport with these children, and the difficulty in replacing him to be compelling and compassionate circumstances given the uniquely severe nature of their disabilities, and the effect on the children and their carers if Mr Maduagwu is not available. I accept that Ms Hussain will be adversely affected if he were required to leave Australia, but I am not satisfied his friendship with her, or with Ms Okoro or Ms Cartledge amount to compelling or compassionate circumstances.
The next question is whether these circumstances justify the grant of the visa. Mr Maduagwu sought a skilled visa because he is a glazier, and the compelling or compassionate circumstances arise out of his employment as a disability support worker. It is incongruous that employment in an area other than a part of the skills required for the visa provide the circumstances on which to waive a requirement for that visa.
Mr Maduagwu’s conduct in this matter is relatively minor. While there is reason to suspect that the bank statements provided in support of his work with Stainless Villa Fabrications are bogus documents, I am not satisfied on the information before me that the work reference contains false and misleading information and have found that Mr Maduagwu worked as a glazier in Nigeria. This means that while the documents may reasonably be suspected of being bogus, the information contained in those documents is supported by other evidence about his work as a glazier in Nigeria. In these circumstances, the compelling and compassionate circumstances affecting Australian citizens justify the grant of the visa, and the requirements of PIC 4020(1) are waived under PIC 4020(4).
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. Mr Maduagwu has provided identity documents, including a passport, which have not been questioned, and he meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no information before me to show Mr Maduagwu has previously been refused a visa because of a failure to meet PIC 4020(2A), and PIC 4020(2B) does not apply.
DECISION
The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:
·Public Interest Criterion 4020 for the purposes of cl 491.211 of Schedule 2 to the Regulations
Kate Millar
Deputy President
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2024] AATA 3194

6 August 2024

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