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.

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).
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.
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.
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
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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] AATA 3174
Decision Date: 31 August 2018

CaseChat Overview and Summary

The applicant, Mr. Mbelu, a Nigerian citizen, sought judicial review of the cancellation of his Subclass 500 Student visa. The visa was cancelled under section 116(1)(g) of the *Migration Act 1958* (Cth) on the prescribed ground in regulation 2.43(1)(o) of the *Migration Regulations 1994* (Cth), which relates to a visa being obtained as a result of fraudulent conduct. The dispute centred on whether the Department had a reasonable suspicion that Mr. Mbelu's visa was obtained due to fraudulent conduct, and whether the power to cancel the visa was appropriately exercised. The matter was heard by Deputy Jan Redfern P.

The court was required to determine two primary legal issues. Firstly, whether the ground for cancellation, as prescribed by regulation 2.43(1)(o), was established. This involved considering the meaning of "reasonably suspects" and whether the evidence supported a suspicion that the visa was obtained as a result of fraudulent conduct. Secondly, the court had to consider whether, assuming the ground for cancellation was established, the exercise of the power to cancel the visa was appropriate, taking into account factors such as hardship, the circumstances of the ground arising, and the applicant's behaviour.

The court applied established legal principles regarding the formation of a reasonable suspicion. It was noted that a reasonable suspicion is sufficient, and it must be founded on objective circumstances rather than mere surmise. The factual basis required for a reasonable suspicion is less than that for a belief, and the suspicion must be open to the decision-maker on the facts. In this case, the Department's investigation revealed information suggesting a departmental employee may have acted improperly in granting the visa, and that the visa would likely not have been granted without this suspected conduct. The court found that this provided a sufficient factual basis to ground a reasonable suspicion that the visa had been obtained as a result of fraudulent conduct. The court also considered the applicant's submissions regarding the consequences of cancellation, including financial hardship and the inability to reapply onshore, but ultimately affirmed the decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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 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). 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). 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. 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. 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.

Evidence

Evidence Before The Court

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 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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].