MBELU (Migration)

[2018] AATA 3174

MBELU (Migration) [2018] AATA 3174 (31 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chukwunonso Aniemeka Mbelu

CASE NUMBER:  1725196

HOME AFFAIRS REFERENCE:                BCC2017/3233804

MEMBERS:Deputy President Jan Redfern (Presiding)

Member David McCulloch

DATE:31 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2018 at 5:24 pm.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa – cancellation under s.116(1)(g) of the Migration Act 1958 – whether the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 applies – visa cancelled following investigation into the circumstances surrounding the grant – consideration of the expressions ‘reasonably suspects’, ‘as a result of’ and ‘fraudulent conduct’ – evidence that application was deficient and of a payment being made to the Department officer who granted the applicant’s visa – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the degree of hardship, circumstances in which the ground for cancellation arose, legal consequences of cancellation, past and present behaviour towards the Department – decision affirmed

PRACTICE AND PROCEDURE – certificate issued under s.375A of the Migration Act 1958 revoked by the Department – certificate issued under s.376 of the Migration Act 1958 – whether it is appropriate to disclose information subject to a s.376 certificate – consideration of public interest reasons specified by the Secretary, principles set out in the Privacy Act 1988 and sufficiency of information released to the applicant – information not released

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 119, 499, 352(4), 375A, 376, 359A, 496

Migration Regulations 1994 (Cth), rr 2.43(1), 2.43(1)(o); Schedule 2 – cll 500.3, 500.111, 500.211, 500.212, 500.213. 500.214, 500.216, 500.217, 500.218, 500.611; Schedule 4 – PIC 4001, 4002, 4003, 4004, 4020, 4021, 4019, 4005, 4010, 4013, 4014; Schedule 5 - cll 5001, 5002, 5010

Privacy Act 1988 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577Shi v Migration Agents Registration Authority [2008] HCA 31

Guo v Commonwealth of Australia [2017] FCA 1355

Odinkaeza (Migration) [2018] AATA 1295

Patel v Minister for Immigration and Border Protection [2016] FCA 165

Rani v Minister for Immigration and Border Protection [2015] FCCA 445

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

SECONDARY MATERIALS

Procedures Advice Manual - PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’

References in square brackets denote information that has been omitted pursuant to a written direction and replaced with non-identifying information: s.378(1) of the Migration Act 1958.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Student (Temporary) (Class TU) Subclass 500 visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that he reasonably suspected the applicant’s visa had been obtained as a result of the fraudulent conduct of a Department officer. 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 applicant, Mr Chukwunonso Aniemeka Mbelu, appeared before the Tribunal on 2 August 2018 to give evidence and present arguments. The applicant was represented by his registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing.

4. We have concluded that the decision to cancel the applicant’s visa should be affirmed. In summary, we have found that the ground for cancellation is made out because we are satisfied that there is a reasonable suspicion that the applicant’s visa was obtained as a result of fraud by a Department officer. We have also found that in the circumstances of this case, it is appropriate to exercise the discretion to cancel the applicant’s visa. Our reasons follow.

   RELEVANT LAW AND LEGAL PRINCIPLES

5. The criteria for a Student (Temporary) (Class TU) Subclass 500 visa are outlined in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). They comprise of primary and secondary criteria.

6. Relevantly, the primary criteria requires that the visa applicant:

   (1)be enrolled in a course of study (or satisfies particular criteria relating to postgraduate thesis marking applicants, Foreign Affairs students and Defence students);[1]

   (2)be a genuine applicant for entry and stay as a student;[2]

   (3)provide evidence of English language proficiency, if required to do so by the Minister;[3]

   (4)have genuine access to sufficient funds available to meet their costs and expenses (and those of each member of their family unit who will be in Australia) during their intended stay in Australia and provide evidence of financial capacity if required to do so by the Minister;[4]

   (5)provide evidence of adequate arrangements for health insurance during the period of their intended stay in Australia;

   (6)met certain age requirements,[5] if the visa applicant is a school student;[6]

   (7)satisfy applicable Public Interest Criteria (PIC);[7] and

   (8)satisfy special return criteria.[8]

   [1] Migration Regulations 1994, cl.500.211.

   [2] Ibid cl.500.212.

   [3] Ibid cl.500.213.

   [4] Ibid cl.500.214.

   [5] Ibid cl.500.216.

   [6] Ibid cl.500.111.

   [7] Ibid cl.500.217. For example, PIC 4001 (Character), 4002 (Security requirement), 4003 (Foreign Minister requirements), 4004 (Debts to the Commonwealth),4005 (Health requirements), 4010, 4013 (Risk factor), 4014 (Risk factor), 4020 (Fraud), 4021 (Passport requirement) and 4019 (Values statement).

   [8] Migration Regulations 1994, cl.500.218. The relevant public interest criteria are PIC5001, 5002 and 5010.

7. 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. Relevant to this case, these include the ground set out in s.116(1)(g) which provides that the Minister may cancel a visa if he or she is satisfied that a ‘prescribed ground’ for cancelling a visa applies to the holder. Regulation 2.43(1) sets out the grounds prescribed for the purposes of s.116(1)(g) and includes r.2.43(1)(o) as follows:

   that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;

8. If the Minister is considering cancelling a visa under s.116, he or she must notify the visa holder that there appears to be grounds for cancelling the visa and give particulars of those grounds and the information on which the grounds appear to exist. The Minister must also invite the holder to show, within a specified time, that those grounds do not exist or that there is a reason why the visa should not be cancelled: s.119 of the Act.

9. If satisfied that the ground for cancellation under s.116 is made out, the Minister has discretion whether to cancel the visa. The Act and Regulations do not specify any mandatory considerations that should be taken into account when exercising the discretion, nor has the Minister issued directions under s.499 about the factors to be considered. The Department of Home Affairs (the Department) has, however, issued government policy (Procedures Advice Manual - PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’) about the matters that may be relevant to consider when exercising the discretion. The matters include, for instance, the purpose of the visa holder’s travel and stay in Australia, hardship, the circumstances in which the ground of cancellation arose, any mandatory legal consequences and whether any international obligations would be breached as a result of the cancellation.

10. The Minister may delegate to a person any of the Minister’s powers under the Act: s.496 of the Act. The Minister has delegated the power under s.116 to certain officers of the Department. PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’ provides guidance to decision makers in exercising the powers under s.116.

11. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate.[9] It is also well established that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.[10] The Tribunal has not identified any such reasons.

    [9] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] (per Hayne and Heydon JJ).

    [10] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12. While civil law concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist: refer Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32].

13. In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. Relevant to the facts of this case, the cancellation of a visa where the visa holder has partly completed a vocational qualification and may not have the opportunity to reapply, return to Australia and complete the qualification has significant consequences. As such, any factual findings should be based on logical and probative material and not speculative information or inexact proofs. This is the approach we have taken in our review of the evidence and in making the critical findings.

    BACKGROUND

14. Mr Mbelu is a 32 year old Nigerian citizen. On 8 December 2016, he lodged an online application for a Class TU Subclass 500 Student – Vocational Education Sector visa to study a Diploma of Accounting at the Australian Academy of Commerce.[11] The applicant did not provide any documentation in support of his education claims to the Department. [12]

    [11] Tribunal file, folios 5 and 108.

    [12] Department file, folio 101 (back).

15. The applicant’s Subclass 500 Student visa was granted on 13 December 2016 and is due to expire on 5 June 2020. [13]

    [13] Tribunal file, folio 6 (back).

16. On 24 January 2017, the applicant arrived in Australia.[14] He commenced a Certificate IV in Accounting on 6 March 2017 but did not complete the course, which was cancelled.[15] The applicant enrolled in a Diploma of Leadership and Management, which he commenced on 5 March 2018.[16] This course is due to be finalised by 1 March 2020.[17]

    [14] Tribunal file, folio 102.

    [15] Tribunal file, folio 103.

    [16] Tribunal file, folio 104.

    [17] Ibid.

17. On 14 September 2017, a delegate of the Minister sent to the applicant a notice of intention to consider cancellation (NOICC) of his visa.[18] The ground for the notice was that there was a reasonable suspicion the applicant’s visa had been obtained as a result of the fraudulent conduct of another person. The particulars provided were to the effect that the Department had conducted an investigation into the circumstances leading to the grant of the applicant’s visa and that the investigation identified information that ‘a departmental employee may have acted improperly to grant [the applicant’s] visa.’[19] It was further noted that it appeared the applicant’s visa would not have been granted if not for this reasonably suspected fraudulent conduct.[20] The delegate therefore held a reasonable suspicion the applicant’s visa had been obtained as a result of fraudulent conduct and as such there appeared to be a ground to cancel the applicant’s visa under s.116(1)(g) of the Act on the basis of a prescribed ground under r.2.43(1)(o) of the Regulations.[21]

    [18] Department file, folios 68 – 70.

    [19] Department file, folio 69.

    [20] Ibid.

    [21] Ibid.

18. The applicant responded to the NOICC by letter dated 18 September 2017.[22] He disputed that the ground for cancellation existed on the basis that the fraudulent conduct was a result of a Department officer’s conduct, not the applicant. It was submitted that the conduct of the delegate could be imputed to the Minister and it would be contrary to the principles of law for the Minister, or his delegate, to cancel a visa on the basis of the fraudulent conduct of a delegated officer.[23] It was further submitted that the intent of Parliament and the purpose of the Act was that a visa can only be cancelled when a visa holder, or any person associated with visa holder, either directly or indirectly has committed a fraud.[24] The applicant submitted that he was not aware of, or involved in, any fraud and there was no substantiated or legal basis for the cancellation of his visa.[25] It was further submitted that by cancelling his visa, the applicant would be unfairly punished for suspected but unascertained fraudulent conduct by a delegate of the Minister that was not within the applicant’s control.[26]

    [22] Department file, folios 71 – 77.

    [23] Department file, folio 76.

    [24] Department file, folio 75.

    [25] Department file, folios 74 – 75.

    [26] Department file, folio 74.

19. It was also submitted that the delegate should take into account ‘compassionate and compelling grounds’ to the effect that the applicant had lodged a valid student visa application which met the requirements and entitled him to be granted a visa, he had arrived in Australia on the basis of a validly granted visa, he was enrolled and was undertaking his studies in Australia, he had commenced study eight months ago and he had complied with the general conditions of the visa.[27] It was further submitted that the applicant was law-abiding, had integrated into the Australian society and was hoping to obtain a qualification that would provide more opportunities for him when he returned to Nigeria.[28] This aspiration would be ‘completely shattered’ if his visa remained cancelled.[29] It was also submitted that he had expended a huge amount of money for the visa application charge, his health insurance, flight expenses to Australia, accommodation bond, rental expenses and school fees and he would suffer ‘great financial loss’ if his visa was cancelled and he could not continue with his studies.[30]

    [27] Department file, folio 73.

    [28] Department file, folio 72.

    [29] Ibid.

    [30] Ibid.

20. On 12 October 2017, a delegate of the Minister decided to cancel the applicant’s visa.[31] The delegate was satisfied that the grounds for cancellation under s.116(1)(g) of the Act were established because the prescribed ground for cancellation in r. 2.43(1)(o) applied in the circumstances of this case.[32] The delegate referred to an investigation undertaken by the Department and found that the behaviour of the departmental employee amounted to fraudulent conduct which resulted in the applicant obtaining his visa.[33] The delegate further found that the evidence supporting the grounds for cancellation was provided by ‘reliable verifiable sources.’[34] Regulation 2.43(1)(o) allows the Minister, or his or her delegate, to exercise the discretion where it is reasonably suspected that a visa holder’s visa was obtained as a result of the fraudulent conduct by any person. It was not necessary to establish the fraudulent conduct was committed by the visa holder.

    [31] Tribunal file, folio 7.

    [32] Tribunal file, folio 4.

    [33] Tribunal file, folio 4 (back).

    [34] Ibid.

21. In considering whether to cancel the applicant’s visa, the delegate gave weight to the fact that the applicant had maintained his enrolment in a registered course during his stay in Australia, he had complied with the conditions on his visa and he and his family would suffer financial loss given the costs that had been incurred.[35] However, these matters were given little weight.[36] The delegate considered the applicant’s claim that he was not involved in the fraud but also gave this little weight in the applicant’s favour.[37] It was noted that the applicant had been cooperative and had provided information when requested. This was given some weight.[38] The delegate noted that if the applicant’s visa was cancelled, he would be subject to s.48 of the Act which means he ‘would have limited options to apply for further visas in Australia.’[39] It was also noted that if the applicant’s visa was cancelled he would become unlawful non-citizen and would be liable for detention or removal from Australia unless he applied for another visa or voluntarily departed Australia. The applicant would be subject to PIC 4013 which may result in a three year exclusion period. However, these matters were given little weight as they relate to the intended legislative consequences of cancellation.[40] It was noted that the applicant was a Nigerian national but there was no information before the delegate to suggest the cancellation would result in breach of Australia’s non-refoulement obligations. This matter was therefore given no weight.[41]

    [35] Tribunal file, folio 3.

    [36] Ibid.

    [37] Tribunal file, folio 3 (back).

    [38] Ibid.

    [39] Ibid.

    [40] Ibid.

    [41] Tribunal file, folio 2.

22. After considering these matters, the delegate concluded that the grounds for cancelling the visa outweighed the reasons not to cancel.

23. The applicant applied for a review of the decision on 16 October 2017.

24. The applicant’s representative made a request for access to documents in the Tribunal and Department files by letter dated 9 November 2017. Partial access to these documents was provided by letter dated 9 July 2018, the details of which is set out below.

    DEPARTMENT INVESTIGATION

25. It is apparent that the delegate relied on a number of reports in relation to an investigation undertaken by the Department about alleged corrupt conduct by Department officers working at the Australian High Commission (AHC) in Pretoria. Those reports were not provided to the applicant by the Department. Nor was the applicant given particulars of the information contained in those reports in the NOICC.

26. The reports were provided to the Tribunal after a request made under s.352(4) of the Act, although not in their entirety. This is dealt with in more detail later in our reasons.

27. According to a document provided to the Tribunal headed ‘Visa Cancellation Referral Report’ dated 10 August 2017 from the Australian Border Force (ABF), the Department identified a link between offshore nationals engaging in criminal activity and visas granted by a Department officer working at the AHC in Pretoria.[42] This led to a joint investigation with the Australian Commission for Law Enforcement Integrity, which commenced in early 2017.

    [42] Tribunal file, folio 51-53.

28. In brief, the investigation found that there was corrupt conduct by two Department officers in the office of the AHC in Pretoria in processing student visas. This conduct was said to involve Department officers ‘bypassing’ the mandatory allocation of cases through the Department’s work management system and ‘recklessly’ approving the grant of student visas to Nigerian applicants, who were identified as high risk, without following the ‘otherwise rigorous assessment’ process that would have been applied to Nigerian applicants as part of Department risk profiling.[43] These processes involve a range of additional assessments which included a direction to ‘check employment and education documents for any evidence of fraud’. This was one of several checks specified in a three page assessment direction, being the ‘Student Visa Assessment Methodology’ which is referred to in and attached to the visa Cancellation Referral Report. It is alleged that money was paid to the Department officers by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.

    [43] Tribunal file, folio 52 (back).

1. Attached to the Visa Cancellation Referral Report are two reports headed ‘Investigation Report LES Misconduct’ in relation to each Department officer.[44] These reports summarise the investigation undertaken and analyse 24 visa applications of Nigerian students that were approved by the alleged corrupt officers. Relevantly, the applicant’s visa is the one of the applications identified by the Department as being tainted by the corrupt conduct of the Department officers.[45]

   [44] Tribunal file, folios 23 (back) – 50.

   [45] Tribunal file, folios 42 – 43 (back).

2. According to an internal referral to the General Cancellations Network dated 6 September 2017, the applicant was assessed as a ‘high risk’ client based on his Nigerian nationality.[46] His visa was granted by one of the allegedly corrupt Department officers, who will be referred to in this decision as ‘Officer A’. The applicant’s visa application was lodged online and was transmitted to the Department from an IP address which was the same address as the source of transmission of other student visa applications which were also the subject of scrutiny as part of the Department’s investigation.[47] Those visa holders were directly linked to a third party based in Australia who, it is alleged, procured visas on their behalf through contact with Officer A.[48] According to the internal referral, Officer A was in receipt of multiple payments from a third party based in Australia to facilitate the grant of visas to applicants, such as Mr Mbelu.[49] Examination of the Department’s assessment notes show that Officer A did not attempt to check the veracity of either the education or employment claims made by the applicant, which is contrary to mandatory procedural requirements.[50] Given the deficiencies in the application, the referral was made on the basis that the applicant’s visa should not have been granted and there was sufficient evidence that his visa had been obtained as a result of the fraudulent conduct of Officer A.[51]

   [46] Department file, folio 3.

   [47] Department file, folio 4.

   [48] Department file, folio 3 – 4.

   [49] Department file, folio 4.

   [50] Department file, folio 3.

   [51] Ibid.

3. The Department also undertook a review of 11 of the affected applications through an experienced senior officer to assess whether the visa holders would have satisfied the student visa requirements.[52] The applicant’s application was one of those reviewed. The senior officer conducted an ‘independent desktop review’ and concluded that, on the basis of information available including the documents provided in support of the application, the applicant failed to meet cl.500.212.[53] Relevantly, the senior officer noted that there was insufficient information provided by the applicant about his employment and no evidence was provided about his education and qualifications.[54] The English language test document provided was genuine but the bank statements provided by the applicant to evidence he had sufficient funds available, had not been verified.[55] It was also noted that the authenticity of the health insurance document had not been confirmed.[56]

   [52] Department file, folio 115 at [5].

   [53] Department file, folio 101 (back).

   [54] Department file, folios 100 – 101 (back).

   [55] Department file, folio 100.

   [56] Ibid.

   PROCEDURAL ISSUES

4. The Department provided the Visa Cancellation Referral Report, the Investigation Reports LES Misconduct (which was partially redacted) and the internal referral to the General Cancellations Network dated 6 September 2017 to the Tribunal as part of the Department file. These documents were the subject of a certificate under s.375A of the Act. A number of the attachments to the Visa Cancellation Referral Report were not provided, including the Student Visa Assessment Methodology and the Report containing detailed case assessments for 11 of the student visa applications which were the subject of the investigations.

5. Section 375A provides that certain information is only to be disclosed to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest for any reason specified in the notice. If a non-disclosure certificate is issued the Tribunal must ‘do all things necessary’ to ensure that the document or information is not disclosed to any person other than the member who is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.

6. The Tribunal corresponded with the Department about the validity and scope of the certificate and on 19 February 2018 the Department revoked the certificate and issued a new certificate in respect of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct under s.376 of the Act.[57] Section 376 gives the Tribunal discretion to disclose information or documents which is the subject of a certificate if it considers it appropriate to do so having regard to any advice given by the Secretary about the significance of the documents or information.

   [57] Department file, folios 97 – 98.

7. The Department also provided to the Tribunal redacted versions of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct, which redacted the names of the Department officers and third parties who are the subject of the investigation and the names and details about investigations undertaken in respect of the other Nigerian students.

8. The Tribunal did not release copies of the unredacted reports, which were the subject of the s.376 certificate. In reaching the decision not to release these reports, the Tribunal had regard to the public interest reasons specified by the Secretary (which refer to prejudicing a current investigation and disclosing investigative methods) and the public interest in protecting personal privacy, in accordance with the principles set out in the Privacy Act 1988 (Cth). The Tribunal also had regard to the fact that the information released was sufficiently detailed to provide the applicant and his representative with particulars of the investigations and the findings made in respect of his student visa application. The views of the applicant were sought and no submissions were made about the validity of the certificate. At the hearing the applicant’s representative advised that the applicant was satisfied with the information released.

9. The redacted version of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct and a redacted version of the internal referral to the General Cancellations Network dated 9 September 2017 were provided to the applicant and his representative by the Tribunal by letter dated 9 July 2018.[58] The Tribunal also requested the applicant’s comments or response in relation to adverse information contained in the referrals and reports under s.359A of the Act.[59] A response was provided prior to the hearing.[60]

   EVIDENCE AND SUBMISSIONS

   [58] Department file, folios 57 – 58.

   [59] Tribunal file, folios 61 – 63.

   [60] Tribunal file, folios 74 – 99.

   Evidence and submissions provided prior to the hearing

10. The applicant submitted, through his representative, that evidence of his education and qualifications had not been provided with the original application and this was in error. These details were now provided which, it was submitted, supported his application. The applicant also noted that doubts were raised about the letter of employment provided because it contained spelling errors and the existence of his employer could not be verified. He provided a further letter from his employer, Chasty Resources Bureau De Change, together with evidence of the company’s online presence. The letter of employment provided was dated 24 July 2018. The letter was signed by Jane C. Akude, Director, and was to the following effect:

    We are writing this letter to provide confirmation of the previous employment of Mr. Mbelu.

    Mr. Mbelu was an employee of our business between 2012 to 2016 in the capacity of both administration and management of accounts. Despite holding certificates in administration, Mr. Mbelu was not qualified to achieve a senior managerial role in the business.

    He indicated his intention to further his studies in 2016 and after consulting our owners, we understood he would travel to Australia to study an accounting Diploma. We are impressed to hear that he has been doing well with his studies and we value the qualification of a country such as Australia given the first class monetary and accounting systems in place.

    We were however distressed to hear the issue surrounding his visa cancellation. Mr. Mbelu assured us that this came about without his wrong doings and we have kept our faith in him. It has driven him to change the nature of his course and pursue a Diploma in Leadership and Management. We feel this will be more appropriate course given he had a very stable knowledge of the accounting framework after completing some of his accounting course in Australia.

    We understand that his studies will continue and we have maintained our promise of employing Mr. Mbelu upon his return given he has completed his course. We would be grateful to secure his employment on his return and he has maintained contact with our office from time to time. He has declared his passion for accounting and his plans to become self-employed in the future as well.

    The team at Chasty Resources Bureau De Change Limited is excited to work with Mr Mbelu in any capacity in the future.[61]

    [61] Tribunal file, folio 109.

11. The applicant provided further financial details, being extracts said to be from his father’s bank account showing NGN$3,162,028 in the account as at 23 July 2018.[62] This is approximately AUD$12,000 at the current exchange rate. The applicant also provided evidence of his current enrolment and the schedule of the tuition fees.[63] According to the enrolment details provided, the applicant is enrolled in a Diploma of Leadership and Management at the Australian Academy of Commerce. The course started on 5 March 2018 and finishes on 1 March 2020.[64] The total tuition fees are AUD$10,800.[65] The applicant provided the transcript for the second semester that recorded he had completed the course subject and achieved a grade of ‘C’.[66] He provided receipts for the fees paid showing the applicant had paid AUD$1,350 in tuition fees.[67]

    [62] Tribunal file, folio 88.

    [63] Tribunal file, folios 79 – 84 and 86.

    [64] Tribunal file, folio 84.

    [65] Tribunal file, folio 83.

    [66] Tribunal file, folio 77.

    [67] Tribunal file, folios 75 – 76.

12. It was submitted that the only evidence that had not been provided with the original application about his employment and education have now been provided as part of this review. It was clear the delegate who approved the application did not follow the processes for assessing student visa applications.[68] The applicant’s representative referred to the Tribunal’s previous decision in Odinkaeza (Migration) [2018] AATA 1295 as authority for the proposition that if the applicant’s application had been processed in accordance with the procedures, his application would have been granted and this was relevant to the issue of whether the ground for cancellation was established.

    [68] Tribunal file, folio 96.

    Evidence at the hearing

13. The applicant was born in Lagos but has lived in Abuja with his family since 1999. Abuja is the capital city of Nigeria. The applicant’s father, Mr Okechukwu Mbelu, provided the financial support to sponsor his application. He is a retired executive who worked with Central Bank of Nigeria until he retired in 2015.

14. The applicant obtained a West African Senior School Certificate from the West African Examinations Council in June 2002.[69] According to the certificate provided to the Tribunal, the applicant completed seven subjects with grades between four and eight. According to the applicant, in order to gain entry to university it is necessary to have attained five credits. He had only four credits and needed a further credit to be eligible for admission to university. He therefore decided to undertake further studies and in November 2004, obtained four credits and two passes from the National Examinations Council of the Federal Republic of Nigeria.[70] It was the applicant’s evidence that this, together with the previous results, allowed him admission to a university. The applicant says he enrolled to study medicine in the Igbinedion University in 2002 in Edo State before achieving these addition credits. His enrolment was provisional, subject to him completing the further credits required. Even though the applicant was successful in obtaining the further credits, he did not pursue his medical degree and instead enrolled in the Bingham University, in Bachelor of Science Business Administration. According to a certificate provided by the applicant to the Tribunal, he was awarded a Bachelor of Science in Business Administration with Third Class on 2 September 2013.[71] The applicant explained that the reference to ‘Third Class’ was a reference to the level of his results and signified that he had obtain a result that was ‘better than a pass’.

    [69] Tribunal file, folio 74.

    [70] Tribunal file, folio 78.

    [71] Tribunal file, folio 87.

15. Relevantly, none of these certificates were provided by the applicant to the Department in support of his application for a student visa.

16. The applicant told the Tribunal that after he left university, he was required to complete national service for 12 months. He commenced working in a family business known as Chasty Resources Bureau De Change Ltd (Chasty) in 2012. Chasty was incorporated in 2012 and was established by his father. Chasty provides foreign exchange services and products and is licensed by the Central Bank of Nigeria. Both the applicant’s mother and father were on the board of Chasty. The company has approximately 10 employees. The applicant commenced working for Chasty in 2012 on a part-time basis. After he finished his national service, he commenced working with Chasty on a full-time basis in 2015. His role was to manage a small team marketing the Chasty foreign exchange products. He did not work as an accountant and Chasty had its own internal accountant.

17. The applicant gave evidence that he wanted to progress his career in working with the family company and in business more generally by obtaining managerial qualifications. He decided to pursue study in Australia because it was considered that qualifications from an Australian university or tertiary institution would be highly regarded on his return to Nigeria. His family agreed to support his application and he was referred to a relative who lived in Australia to assist him in the preparation of the application. His relative referred him to [Person A]. [Person A] gave the applicant advice about the process and assisted him to lodge the application online. This person opened an online account with the Department on the applicant’s behalf and lodged documents and the application for the applicant online. The applicant paid [Person A] USD$10,000. Half of the fee was paid ‘up front’ before the application was lodged. The applicant said that he understood this included tuition and enrolment fees of about $1,600, health insurance costs and the application fee. The balance of the fee was paid after the visa was granted.

18. The applicant enrolled in a Certificate IV Accounting course but when his visa was cancelled, his study rights were also cancelled. He did not complete the course and enrolled in a new course after he obtained a bridging visa, being the Diploma of Leadership and Management which commenced in March 2018.[72]

    [72] Tribunal file, folio 108.

19. The Tribunal disclosed to the applicant under s.359AA that [Person A] was the person referred to in the investigation report as the Australian operative who had paid money to Officer A. The applicant told the Tribunal that he was not aware of this and did not know whether monies had been improperly paid to Department officers. He said that he did not suspect there was any fraud even though he was initially surprised that the visa was granted within five days. He had undertaken some research that indicated the processing time for visas could be between two weeks and several months. He though that the money paid to [Person A] was remuneration for his services.

20. The applicant had provided to [Person A] details of his education and qualifications and relevant certificates, bank statements from his father, the results of an International English Testing System test and a letter from Chasty indicating that the applicant had been in the employment of the company for the past three years.

21. The applicant gave evidence that he would suffer considerable hardship if his visa remained cancelled. He would not be able to complete his studies and would therefore find it difficult to obtain senior positions on his return to Nigeria. His parents would be disappointed that he would be unable to complete his studies. They had paid monies, including his airfare, tuition fees and other expenses, to assist him in enrolling in the Certificate IV Accounting course and Diploma of Leadership and Management. The applicant said there would be limited opportunity for him to undertake comparable studies if he returned to Nigeria.

22. The applicant also requested that the Tribunal have regard to the anxiety and hardship he had already sustained in having his visa cancelled, including the fact that the ABF made attempts to locate and detain him.

23. The applicant was questioned about the letters provided from Chasty, firstly in support of his application for a visa and secondly, in support of this review. Neither letter disclosed that the applicant was the son of the directors, had only worked part time until 2015 and did not work on the company’s accounts but rather in foreign exchange sales managing a small team. The applicant agreed this information was not disclosed, although he said this information was freely provided when he was asked questions by the Tribunal. This is correct but the information was not volunteered and the letter gave a misleading impression to the reader about the applicant’s role in Chasty and his connections with the company, which were matters that were highly relevant to the veracity of his employment.

    Evidence and submissions provided after the hearing

24. The applicant’s representative requested further time to provide submissions and evidence to the Tribunal.

25. The copy of the bank statements provided with the first submission was not a complete extract and did not include the first page. This was provided in submissions lodged by the applicant after the hearing. The statements were from FirstBank for the period 1 May 2018 to 23 July 2018 in the name of Okechukwu Benjamin Mbelu. [73] The statements showed an opening balance of NGN$15,725,686.36 and a closing balance of available funds of NGN$3,162,028.25.[74] This was consistent with the first statement provided to the Tribunal.

    [73] Tribunal file, folios 123 – 134.

    [74] Ibid.

26. The applicant provided a Certificate of Incorporation for Chasty from the Corporate Affairs Commission of the Federal Republic of Nigeria dated 25 June 2012 and evidence of the fees paid for the Certificate IV in Accounting and Diploma of Leadership and Management  totalling AUD$5,400 and the enrolment and materials fees of AUS$250.[75] The applicant also provided a letter from his father explaining the circumstances leading to the preparation of the second letter from Chasty. The letter stated that the family did not consider it appropriate to mention the relationship between the applicant and the directors of the company given that the applicant had requested that the letter be kept ‘professional’. [76] The applicant’s father confirmed that the applicant had worked in the business from 2012. He also stated that there would be significant hardship to the applicant if his visa was cancelled and he was unable to complete the course and obtain Australian qualifications. This qualification would be valued and would give Chasty a competitive advantage if the applicant returned to work for the company with this qualification.[77] Conversely, if their son returned without the qualification, trust would be lost with their clients and it would be difficult to explain why the applicant had returned without the qualification.[78] They had invested significant money into the applicant obtaining Australian qualifications. Neither the applicant nor his parents knew of the fraudulent conduct.[79] The family had followed instructions and paid what they believed was required.[80]

    [75] Tribunal file, folios 121 and 115 – 120.

    [76] Tribunal file, folio 114.

    [77] Tribunal file, folio 113

    [78] Ibid.

    [79] Ibid

    [80] Tribunal file, folio 112.

1. The applicant’s representative submits that the applicant had no knowledge of the fraudulent conduct or that payments were made by [Person A] to a Department officer.[81] The applicant does not dispute that the visa was granted as a result of the fraudulent conduct by the Department officer but contends that the visa would have been granted but for the fraudulent conduct if it had been assessed by another Department officer.[82] The representative relies on Odinkaeze to support the proposition that r.2.43(1)(o) has therefore not been established and the power under s.116(1)(g) is also not established. This is either a misapplication or misunderstanding the previous Tribunal decision, which we address in more detail later in our reasons.

   [81] Tribunal file, folio 137.

   [82] Ibid.

2. The representative submits that even if the power is established the visa should not be cancelled having regard to the cancellation process, which caused him significant hardship.[83] He feared for his well-being because ABF officers detained him and this has impacted on his mood, ability to sleep and to focus on his education.[84]

   [83] Tribunal file, folio 136.

   [84] Tribunal file, folio 136 at (1).

3. In additional, it is submitted that the applicant has incurred additional expenses relating to the appeal, he has incurred expenses on his education which will be wasted, his study was disrupted and he was denied permission to work until he was granted a Bridging E (Class WE) visa on14 November 2017.[85] He has therefore not had the opportunity to complete any qualifications.[86] The applicant is also barred by s.48 of the Act from making any further applications onshore.[87] The applicant relied on [Person A] and put his trust in [Person A].[88] It is submitted that the applicant’s evidence was ‘credible and consistent with information held by the Tribunal’ and this would support a finding that the applicant did not knowingly contribute to the fraud.[89] He would have satisfied the student visa criteria and his visa should therefore not remain cancelled and should be reinstated.

   CONSIDERATION OF CLAIMS

   [85] Tribunal file, folio 136 at (3) – (4).

   [86] Tribunal file, folio 136 at (4).

   [87] Tribunal file, folio 136 at (5).

   [88] Tribunal file, folio 135.

   [89] Ibid.

   Does the ground for cancellation exist?

   General principles

4. The Tribunal must be satisfied that a prescribed ground for cancellation exists. The prescribed ground identified is the ground set out in r.2.43(1)(o) which requires that the decision maker must reasonably suspect that the visa, which is the subject of cancellation, has been obtained as a result of the fraudulent conduct of any person.

5. The term ‘reasonably suspects’ is not defined in the Act or the Regulations but its meaning has been judicially considered in the context of r.2.43(1)(o) and s.189 of the Act. The following is a summary of the key principles that can be drawn from these authorities:

   (1)It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient.[90]

   (2)A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[91] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[92] 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.[93]

   (3)The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[94] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[95]

   (4)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.[96]

   (5)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.[97]

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

   [91] 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.

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

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

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

   [95] Ibid.

   [96] 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].

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

6. Fraudulent conduct is not defined in the Act or Regulations. The ordinary English meaning of ‘fraud’ as set out in the Macquarie Dictionary (online edition) is:

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

7. This is consistent with the PAM3 which also adopts the Macquarie Dictionary definition and states that ‘fraudulent conduct’ is an:

   [A]dvantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false.[98]

   [98] Procedures Advice Manual - PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’

8. Regulation 2.43(1)(o) requires that the decision maker must reasonably suspect that the visa has been obtained as a result of the fraudulent conduct. This phase is not defined in the Act or Regulations but adopting the plain and ordinary meaning of the phase would suggest that a ‘causal connection’ is required. That is, but for the fraud the visa applicant would not have obtained the visa.

9. This is consistent with departmental policy. Relevantly, the PAM3 provides that:

   [I]t is not enough to reasonably suspect that there was fraudulent conduct by a person - the delegate must reasonably suspect that if it were not for the fraudulent conduct the visa would not have been granted.[99] [Emphasis added]

   [99] Ibid.

10. Regulation 2.43(1)(o) speaks of fraudulent conduct by ‘any person’. As such, it is not necessary for the Tribunal to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct: Patel at [23] (per Bromberg J.

    Findings

11. There is evidence from the Department to support a finding that there is a reasonable suspicion of fraud by Department officers in Pretoria in relation to the granting of student visas to Nigerian nationals. This evidence is set out above. There is also evidence that there was fraudulent conduct in respect of the grant of the applicant’s student visa. This evidence is based on the Investigation Report, the Visa Cancellation Referral Report and the independent desktop review of 11 of the affected applications undertaken by a senior Department officer.

12. According to the Investigation Reports LES Misconduct from the Department, [Person A] paid money to the allegedly corrupt Department officer who granted the applicant’s visa within five days of lodgement.[100] While the source of this information is not referenced in the report, this information is credible given the nature of the investigation undertaken. The incontrovertible fact is that the visa was granted, notwithstanding that the details of the applicant’s education and qualifications had not been provided (as noted in the desktop review) and that the letter of employment provided, on the face of it, may have been bogus because it was poorly written and contained numerous spelling errors.[101]

    [100] Tribunal file, folio 42 at [146].

    [101] Tribunal file, folio 42, at [100].

13. It is clear from the Investigation Reports LES Misconduct that the Department undertook detailed investigations, including interviewing the allegedly corrupt Department officers and examining Department records and the records of the officers. It is apparent that the conclusions made in these Reports are based on objective evidence available to the investigators and, having examined the contents of the Reports, we find them to be credible. There was no submission to the contrary by the applicant’s representative.

14. In summary, there are three critical facts established through these Reports that form the foundation of the Department’s case for cancellation. First, there is evidence that monies were paid by [Person A] to the allegedly corrupt Department officer. Secondly, there is evidence that the Department officer who received the remittance granted the visa. Thirdly, there is evidence that the application lodged with the Department was deficient and notwithstanding this; the application was approved within five days of lodgement. It does not matter that [Person A] did not lodge all the necessary documents which were available to [Person A] or that a complying and more detailed application could have been lodged. [Person A] simply did not do so and, in this respect, the application was deficient.

15. The applicant concedes that it is apparent the application was affected by fraud. However, it is submitted that r.2.43(1)(o) is not engaged for two reasons. First, the applicant did not know and was not involved in the fraud.[102] Secondly, the applicant’s visa would have been granted because he could have satisfied the relevant criteria and the assessment under the Student Visa Assessment Methodology if the Department officer had assessed his application properly or if another officer had conducted the assessment.[103] As already noted, the representative relies on the decision in Odinkaeze.

    [102] Tribunal file, folio 137

    [103] Tribunal file, folios 135.

16. There are a number of answers to these submissions.

17. For r.2.43(1)(o) to be established, it is necessary for there to be objective facts sufficient to found a reasonable suspicion that the visa has been obtained as a result of the fraudulent conduct of ‘any person’. On a plain reading of the regulation it is not necessary for the applicant to be involved in the fraud. As observed by Bromberg J in Patel at [23]:

    …In other words, it was not necessary for the Tribunal to have been satisfied that [the owner of the nominated sponsor] and [the nominated sponsor] had been involved in fraudulent conduct. It was sufficient for the Tribunal to have come to the view, which it did, that it reasonably suspected that the Visa had been obtained as a result of fraud. [Emphasis in orginal]

18. As such, the knowledge of the applicant of the fraud is not relevant for the purposes of establishing the ground. This issue may however be relevant to the exercise of discretion and this is referred to in more detail later in our reasons.

19. The second submission contends that the applicant’s visa was not obtained as a result of the fraud because the visa could or would have been granted absent the fraud. We reject this submission.

20. The previous decision of Odinkaeze is not authority for this proposition and if it is taken to be such, the Tribunal takes the opportunity to clarify the reasoning. In Odinkaeze the Tribunal was not satisfied there was sufficient evidence to found a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud of the allegedly corrupt Department officer. While there was evidence of the fraudulent conduct by the Department officer in respect of the grant of student visas to Nigerian nationals more generally, the Tribunal was not satisfied on the basis the evidence that there was a link between the fraudulent conduct as described more generally in the Investigation Reports LES Misconduct and the granting of the visa of Ms Odinkaeze.

21. As observed in Odinkaeze, there must be sufficient evidence to establish the reasonable suspicion of the causal connection between the fraudulent conduct and the granting of the visa. Even though the Tribunal found it was relevant that Ms Odinkaeze’s application would have been granted on the basis of the material provided, this is not authority for the proposition that r.2.43(1)(o) requires a ‘but for’ test that excludes this possibility.

22. In Odinkaeze the delegate had concluded that the fact Ms Odinkaeze would have met the Student Visa Assessment Methodology was irrelevant and the evidence of the fraudulent conduct and the allegedly corrupt Department officers conduct more generally was sufficient to satisfy the test of reasonable suspicion. The Tribunal concluded that this was not enough and it was necessary to establish that there was a causal link between the conduct and the obtaining of the visa. [104] Evidence that certain checks had not been undertaken was not itself evidence of a causal link, particularly if there is evidence the visa would have been granted in any event.

    [104] Odinkaeza (Migration) [2018] AATA 1295 at [49] and [51](5).

23. In Odinkaeze, the applicant had provided all of the required information.[105] While there was evidence to suggest the Department officer may not have verified the education or employment details of Ms Odinkaeze and this was contrary to internal procedure, this does not establish the causal connection.[106] Apart from the evidence that the allegedly corrupt Department officer had processed the application outside the usual case management processes and the grant was made 11 days after lodgement,[107] there was no evidence to otherwise implicate the granting of Ms Odinkaeze’s visa in the broader allegations of fraud uncovered by the Department. In other words, there was insufficient evidence of a causal connection between the fraudulent conduct and the grant of the visa in that particular case.

    [105] Ibid [38].

    [106] Ibid [51](6).

    [107] Ibid [23] and [51](7).

24. This case is different. The applicant did not provide all the necessary material to support his application and, on its face, the application was deficient. It did not follow the Student Visa Assessment Methodology and if it had been properly assessed or assessed absent any fraud, it is apparent that it would not have been granted in five days or at all. This is apparent from the evidence of the Department officer who undertook the independent desktop review.

25. In short, there is evidence that the decision to grant the applicant’s visa is affected by fraud because there is evidence of a payment being made to the allegedly corrupt Department officer by [Person A] and the applicant’s visa was granted by the officer five days after lodgement even though the application was deficient.

26. For these reasons, 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 visa should be cancelled.

    Consideration of discretion – How should the discretion be exercised?

27. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, in considering the exercise of the discretion, we have had regard to the circumstances of this case, including matters raised by the applicant, and matters in the PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. Not all of the matters identified in the Department guidelines are relevant to the current case, however, some are apposite.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

28. The applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) Subclass 500 visa. He was enrolled in an accounting course which he did not complete because he says, and we accept this evidence, that his study rights were removed when his visa was cancelled. We also accept the applicant’s evidence that he decided to change his course to a Diploma of Leadership and Management and that he has a genuine desire to complete this course so he can return to Nigeria with a useful and reputable qualification. This course expires in March 2020 and as such, we also accept that he has a compelling need to remain in Australia in order to complete this course. This weighs against cancellation.

    The extent of compliance with visa conditions

29. In the response to the NOICC, the applicant submitted that he had complied with the conditions attached to his visa. The delegate’s decision indicates there is ‘no adverse information…to indicate any non-compliance’ and that the visa was not being considered for breach of conditions.’[108] We accept that this weighs in the applicant’s favour.

    [108] Tribunal file, folio 3.

    The degree of hardship that may be caused

30. The Department guidelines require the Tribunal to consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the ground for cancellation existing. The guidelines state that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.[109]

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

31. In this case, it is submitted that the applicant was not aware of or involved in the fraud and that, if he had received proper advice, his application would not have been deficient and would have been granted in the normal course. The cancellation of his visa was therefore not directly attributable to his actions, will cause him significant hardship and this is something the Tribunal should take into account.

32. While there is evidence from the applicant that he paid [Person A] USD$10,000, he also gave evidence that he believed this was for expenses that would be properly incurred as part of the visa application and to remunerate [Person A]. He was aware the visa had been granted quickly and in a more timely fashion than the timeline given by the Department on its website, however, this did not raise suspicions. The applicant was questioned about whether he was aware or must have been on notice that the circumstances leading to the approval of his application were suspicious. The applicant gave evidence that he did not understand these matters and believed the advice given to him by [Person A]. He and his family had little understanding of the visa application process and he thought that the advice he was being given and the money that was being paid was in accordance with normal practice. While we have some doubts about the applicant’s evidence in this regard, it is plausible. In the absence of any evidence to the contrary, we accept the applicant’s evidence that he did not know and was not knowingly involved in the fraudulent conduct.

33. It cannot be said that the circumstances said to give rise to the fraud were entirely outside the applicant’s control. The applicant retained the services of [Person A] and paid money to [Person A], which was presumably used to pay the bribe to the Department officer. We do, however, accept that the fraud within the Department was outside his control and, in this regard, we accept that this matter weighs against cancellation.

34. We accept that the applicant will face hardship as a result of the cancellation of his student visa because he will not be able to finish the Diploma of Leadership and Management that he commenced in March 2018. We accept that he has expended considerable monies to travel to Australia and to pay for tuition fees, accommodation and living expenses. We also accept that his family will be disappointed and there may be embarrassment to the applicant and his family arising from the cancellation and the associated fraud. Against this, the applicant and his father maintain the applicant and the family were not involved in the fraud and this is a matter that can be explained to associates or clients when the applicant returns to Nigeria. The fact the applicant has been disadvantaged by the conduct of others should therefore not reflect poorly on his character.

1. We accept the applicant will suffer hardship because he has now incurred costs he cannot recover and which will not result in him obtaining a qualification. However, it is relevant to note that a significant part of these costs were incurred after the applicant’s visa was cancelled. As such, the applicant was on notice these costs may ultimately be ‘thrown away’ if his review did not succeed. This factor is a hardship that does not, in our view, weigh strongly against cancellation.

2. We also accept that the applicant suffered anxiety and fear when ABF officers made attempts to locate the applicant and detain him and he has incurred costs in seeking this review. This is a hardship but does not, of itself, weigh against cancellation. It is the result of the cancellation which was within power. This matter should be given little weight.

3. The most significant hardship that the applicant has suffered is the opportunity that he has now lost to complete his Diploma of Leadership and Management within the next few years. This opportunity is not completely lost as the applicant could reapply for a student visa on his return to Nigeria, subject to the limitations referred to in more detail later in our reasons. On balance, this matter weighs against cancellation but the hardship is ameliorated by the fact the applicant has only completed one semester of the Diploma and he can potentially pursue this opportunity at a later point of time.

   The circumstances in which ground of cancellation arose

4. The circumstance that gave rise to the breach is the reasonable suspicion that the applicant’s visa was obtained by the fraud of a Department officer.

5. We accept that the applicant did not participate in or have knowledge of the fraud by the Department officer. While this weighs against cancellation, the nature and extent of the fraud and the fact that there is evidence of a payment to a Department officer in respect of the applicant’s visa, is an extremely serious matter.

6. This undermines not only the integrity of the student visa scheme and the Department processes for assessing these matters but the reputational integrity of the Department’s visa assessment processes. In our view it would be contrary to public policy and the due administration of the visa scheme to allow a visa affected by fraud, particularly when that fraud is perpetrated by Department officer, to remain in place. As such, this factor weighs strongly in favour of cancellation.

   Past and present behaviour of the visa holder towards the Department

7. The delegate’s decision indicates there is no information to indicate ‘adverse behaviour’ towards the Department.[110] The applicant has engaged with the Department by responding to the NOICC and providing information relevant to these proceedings.

   [110] Tribunal file, folio 3 (back).

8. An issue of concern is the contents of the letter from Chasty and the evidence of the applicant about his employment with Chasty. The letter from Chasty does not disclose that it is a company closely associated with the applicant and his parents. The letter does not disclose any reference to the family association and it conveys the impression to the reader that the applicant and Chasty are at arm’s length. Relevantly, the close association was not disclosed to the Tribunal until the applicant was specifically questioned about this during the hearing. When questioned about why this information was not disclosed in the letter from Chasty or in submissions provided to the Tribunal prior to the hearing, the response of the applicant was unconvincing. He did not accept the letter was misleading in failing to disclose the family connection. The letter provided by the applicant’s father explained why this information was not included but the explanation is unsatisfactory and does not assist the applicant. In the letter it was conceded that it would be more professional not to disclose the association and that this request came from the applicant.

9. The applicant did not divulge the information regarding the close association voluntarily at the hearing and while we accept he did not lie, the submission that telling the truth to the Tribunal under oath weighs in the applicant’s favour is rejected. Telling the truth to the Tribunal under oath is to be expected.

10. On balance, the fact the applicant was not frank and provided information that was misleading tends to weigh in favour of cancellation.

    The mandatory legal consequences of cancellation

11. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. First, he is not able to make an onshore application for another visa by reason of s.48 of the Act. He will be an unlawful non-citizen and be required to return to Nigeria.

100. Furthermore, the applicant will effectively be precluded from making any further applications for a visa for a period of three years by reason of the PIC 4013 in Schedule 4 to the Regulations. In summary, if an applicant for a visa is affected by a ‘risk factor’ identified under PIC 4013, relevantly in this case cancellation under s.116, the applicant is required to satisfy one of the two alternate criteria set out in PIC 4013(1). PIC 4013(1)(a) requires that the visa application has been made more than three years after the date of the relevant visa cancellation or Ministerial direction. In the alternative, PIC4013(1)(b) requires that the decision maker be satisfied that, in the particular case, there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify the granting of the visa within three years after the date of the visa cancellation or determination.

101.   There was no submission about whether the applicant could make a further application for a visa within the three year exclusion period under PIC 4013(1)(b). In these circumstances, we accept that the applicant will be unable to make any new application for a student visa for a period of three years from the date of cancellation, namely 12 October 2020.

102.   These matters weigh against cancellation.

Whether any international obligations would be breached as a result of the cancellation

103.   There were no submissions made nor was there any evidence before the Tribunal identifying any international obligations that will be breached. As such, this factor is neutral and does not weigh against cancellation.

Any other relevant matters

104.   There were no other matters identified by the applicant or his representative as relevant for consideration.

Conclusion

105.   In considering whether to cancel the applicant’s visa we have taken into account all of the factors referred to above. In summary, there are factors both for and against cancellation. The most significant factor that weighs against cancellation is a hardship the applicant will suffer in losing the opportunity to complete his Diploma and having paid fees and travel costs towards the completion of this visa. These costs and expenses will now not be recouped in the sense that the applicant will not have the opportunity to obtain his Diploma of Leadership and Management as a result of his current enrolment. Against this, it is relevant to note that some of these costs were incurred by the applicant on notice that they would not be recouped, the applicant has not progressed to his Diploma beyond finalising one semester and there is the possibility the applicant may be able to pursue that Diploma in the future, provided his family can again finance his travel and tuition fees.

106.   On the other hand, the circumstances that gave rise to the cancellation of the applicant’s visa weigh strongly in favour of cancellation. There is a direct causal link between the fraud and the granting of the applicant’s visa, including by way of payment of USD$10,000 on behalf of the applicant to Officer A, who was found to have facilitated fraud who granted the visa, notwithstanding clear deficiencies in the application. The Tribunal would find that such matters, which go to integrity of the visa system, outweigh matters in the applicant’s favour, including the fact that the Tribunal has found that he had no direct knowledge of the fraud. It is also relevant that the applicant was not frank with either the Department or the Tribunal in submitting the letter of employment from Chasty.

107.   Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Subclass 500 (Student) visa should be cancelled.

DECISION

108.   The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Subclass 500 visa.

Jan Redfern
Deputy President

David McCulloch
Member