Nkwocha (Migration)

Nkwocha (Migration) [2019] AATA 5437 (27 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christopher Uchenna Nkwocha
CASE NUMBER:  1725643
HOME AFFAIRS REFERENCE(S):          BCC2017/3233885
MEMBER:Wendy Banfield
DATE:27 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 27 November 2019 at 9:29am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – visa obtained as a result of fraudulent conduct – reasonable suspicion – high risk application based on Nigerian nationality – locally engaged staff – lacked formal authority to process application – failure to apply appropriate assessment processes and scrutiny – consideration of discretion – purpose of travel and stay – knowledge or involvement in the fraudulent conduct – deficiencies in application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), r 2.43
CASES
Patel v Minister for Immigration and Border Protection [2016] FCA 165

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicants visa was granted as a result of fraudulent conduct on the part of a Departmental employee. An investigation found that it appears if not for the fraudulent conduct by the officer; the visa would not have been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Nigeria and is currently 36 years old. He was granted a Student visa on 14 December 2016 and on 13 October 2017 the Department cancelled the visa. Since arriving in Australia the applicant has been enrolled in a Diploma and Advanced Diploma of Leadership and Management.
The applicant appeared before the Tribunal on 13 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.
Applicant’s evidence at the hearing
The Tribunal asked the applicant about the circumstances that led him to apply to study in Australia. The applicant said the Australian education system is very sound and held in high regard. He said in Nigeria the education system is poor and there are few jobs to employ people. The applicant said he decided to study abroad because those who have done are paid the same as expatriates and in US dollars.
According to the applicant there are oil and telecommunications companies in Nigeria that prefer to employ overseas educated people. Regarding his background, the applicant said he completed high school and then worked as an internet café attendant. In 2007 the applicant advised he enrolled to study in the UK at the University of London but it was very expensive. He said he had planned to study international relations and sociology but did not do so due to the cost.
The applicant claimed he applied to study in Australia online and lodged the documents himself without the involvement of an agent. He had thought that if there was anything wrong the Department would advise him. When he received the notification of possible cancellation from the Department the applicant said he thought it was a fraud or a scam until his lawyer told him it was authentic.
Regarding his future plans, the applicant said he wanted to study in order to apply for a higher position in Nigeria. He said he chose Leadership and Management courses as it is practical and deals with real life situations. He claimed the course he is taking is almost equivalent to a Bachelor degree in his home country. The applicant stated he supports himself in Australia working part-time in aged care and is also helped by his cousins. He is living in Canberra but said he is still studying in Sydney. He claimed he chose aged care because he did not want to do kitchen work and because he wanted to help people. The applicant was asked about his written evidence to the Department dated 11 October 2017 in which he stated that he paid the medical expenses of his father in Nigeria. In response he said his father has a chronic illness affecting the kidneys and he agreed he does send money from Australia for this purpose. However, the applicant said he considers it to be “support” and that “pay” may not be the right word.
In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared he had been enrolled in two courses that were cancelled. The information put to him was that according to the Provider Registration and International Student Management System (PRISMS), he had deferred his studies and had not yet completed any courses. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time.
The applicant did not request time to respond. He said that while living in Canberra, Australian Border Force officers had come to his place of residence and he had been taken to Villawood Detention Centre in Sydney. According to the applicant his phone was taken and it was difficult to contact his lawyer. He was there for two weeks, during which time he applied for a review of the decision to cancel his visa. The applicant advised he has been enrolled and studying but because his visa was cancelled, his enrolment was also cancelled. The applicant said he had only held a Bridging Visa E after that and did not have study rights. After he was released from detention his lawyer applied for him to have study rights. The applicant claimed it was because of this setback that he had not been able to complete any courses yet. When he did seek to return to study, the applicant stated the subjects were not available at the time.
The applicant claimed that all the documents he had uploaded with his visa application were genuine and it was not up to him to make sure they are properly checked. He advised he did not know why his visa application would have been approved without the appropriate checks being made. The applicant alleged he did have financial support at the time from his cousin.
Regarding any compelling need to remain in Australia the applicant said that apart from study there is nothing to keep him here. He said he has paid a lot of money and wants to be allowed to “do my four years”. In this regard the applicant said he would need three more years to complete his academic goals in Australia. He claimed he has complied with all other visa conditions. The Tribunal asked the applicant about the degree of hardship that may be caused by cancellation of his visa and he said he has tried to focus but does not have “inner peace”. The applicant said he has paid school fees in the amount of $10,400 so far.
The applicant made further reference to the circumstances that led to the cancellation of his visa. He said he believed he was qualified for the Student visa and was shocked when he heard about fraud by another person. The applicant suggested that those who intentionally engaged in fraud would not then go on to study. He claimed he had stayed in contact with the Department since first receiving the letter about possible cancellation and there are no consequential cancellations. As to the legal consequences of cancellation, the applicant said it would affect his dreams if his visa is cancelled. He said if his visa is cancelled he is back to the position he was in before coming to Australia.
In conclusion the applicant said he appreciated the opportunity to study in Australia and requested his visa not be cancelled. He said currently he is unable to sleep and has no peace or enjoyment. He reiterated he had not been involved in any malpractice and did not know how his visa application came before a corrupt officer.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PROCEDURAL MATTERS
The Tribunal explained to the applicant that the Departmental file contains information referring to investigations undertaken by the Department and that some of those documents are the subject of s.376 certificates.
If there is a valid ss.376 certificate, the Tribunal can exercise its discretion to give or disclose the material to the applicant (subject to any restrictions in the Privacy Act). If the Tribunal proposes not to give or disclose the material, the Tribunal should invite the applicant to make submissions on the validity of the certificate and the exercise of the discretion.
The applicant was advised that the Tribunal would be excluding some documents on the grounds of, amongst other things, there being internal working documents that if released would likely prejudice the effectiveness of methods for assessing student visa applications, and Australian Privacy Principles set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about other persons.
It was explained that the Tribunal would be discussing the Departmental information with him in general terms but would not be disclosing the particulars of investigation documents, or the names of individuals. The applicant was invited to make any submissions but did not comment on this aspect of the case.
Departmental investigations
According to a document in the Departmental file titled ‘Visa Cancellation Referral Report by the Australian Border Force, the Department identified a link between offshore nationals engaging in criminal activity and visas granted by a Department officer working at the Australia High Commission in Pretoria in Pretoria. This led to an investigation which commenced in early 2017.
The investigation found that there was corrupt conduct by Locally Engaged Staff (LES) in the office of the High Commission in processing student visas. This conduct was said to involve LES ‘bypassing’ the mandatory allocation of cases through the Department’s work management system and granting student visas to Nigerian applicants, who were identified as high risk, without following the established assessment processes that would have been applied to Nigerian applicants as part of Department risk profiling. 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 noted that money was paid to LES by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.
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. Those visa holders were directly linked to a third party based in Australia who, apparently, procured visas on their behalf through contact with one of the LES.
According to the internal referral, one of the LES was in receipt of multiple payments from a third party based in Australia to facilitate the grant of visas to applicants. Examination of the Department’s assessment notes show the LES did not attempt to check the veracity of a number of claims made by the applicant, which is contrary to mandatory procedural requirements. Given the deficiencies in the application, the referral is 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 the LES. The Department found that amongst other things, the LES did not check the veracity of the employment claims made by the applicant.
Section 359A letter
On 15 October 2019 the applicant was invited to comment on or respond to information and provide information as follows:
·     You were one of 21 Nigerian national applicants for whom it is believed the grant of their student visa was a result of corrupt conduct by a departmental officer.
·     It is purported that the departmental officer executed these grants without the visa application cases being allocated to them, in circumstances where they were not authorised to process such cases and where they failed to apply the mandatory guidelines.
·     You were flagged as a ‘high risk’ applicant on the basis of your Nigerian nationality. Contrary to mandatory procedural requirements for ‘high risk’ clients, the departmental officer did not check the veracity of your employment or past educational claims.
·     The deficiencies in the departmental officer’s processing of your application indicated that without the conduct, as set out above and detailed in the Visa Cancellation Referral Report (a redacted copy of which was given to you at hearing), the visa would not have been granted.
·     A redacted report by Australia Border Force indicates a review of your case was undertaken that found similar courses of study were available in South Africa and Nigeria, your employment letter contained anomalies and you did not provide a sponsor letter in support of your application. These documents are attached for your information.
This information is relevant to the review because if the Tribunal accepts the information in the Australian Border Force and Departmental documents, this would be the reason or part of the reason for a finding by the Tribunal that it reasonably suspects that your visa has been obtained as the result of fraudulent conduct of any person: Reg: 2.43(1)(o).
If the Tribunal relies on this information in making its decision, it may find that the ground for cancellation under s.116(1)(g) exists and the information would therefore be the reason, or a part of the reason, for the Tribunal affirming the decision under review.
You are invited to give comments on or respond to the above information in writing.
You are also invited to provide the following information in writing:
·Any other evidence that you wish to be considered in relation to your application for review.
The applicant responded to the invitation on 1 November 2019 and made the following claims:
·     I never knew, contacted nor colluded with any departmental officer in whatever shape or form. I also do not know why my visa application was processed by the said corrupt departmental officer. I am of the humble opinion that my genuine application must have been mixed with the other corrupt ones in order to mask their fraudulent activities.
·     I was not involved in any corrupt conduct by the departmental officer. All information relating to my employment and education were all provided. The onus was on the department to check and verify the documents provided, and the fact that this was not done was no fault of mine.
·     Conclusively, I wish to restate the fact that I never knew, participated nor colluded with any corrupt persons in the grant of my student visa. My intention of coming to Australia is genuine and I wish to pursue my studies and return home upon completion. I have expended a substantial amount of funds in undertaking and paying for my course of which I am part way of its completion.
In his response the applicant included reasons why he chose not to study in South Africa or Nigeria and why he chose to study in Australia. He provided online sources to support his reasons. The applicant addressed why there was a spelling anomaly in his company name listed in the redacted Departmental report (misprint); his company’s web presence; and why he had not provided a sponsor letter, (oversight on his part). He provided login details for access to his PTE English score and his Senior School Certificate.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations).
In the present case, the ground in r.2.43(1)(o) is relevant. Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.
On 13 September 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on the basis that:
· On 8 December 2016, you lodged your Student visa application electronically via a DIBP online processing system. You were granted your visa on 14 December 2016 by the Department’s post in Pretoria South Africa. Departmental records indicate that you arrived in Australia as the holder of a Subclass 500 Student – Vocational Education visa on 23 February 2017.
· The Department has conducted an investigation into the circumstances leading to the grant of your Subclass 500 Student visa.
· Information identified through this investigation indicates a departmental employee may have acted improperly to grant your visa. Therefore, it appears your visa would not have been granted if not for this reasonably suspected fraudulent conduct. The fraudulent conduct referred to in reg 2.43(1)(o) is not limited to conduct by the visa holder.
· As I hold a reasonable suspicion your visa has been obtained as a result of fraudulent conduct, there appears to be a ground for cancellation of your Student (subclass 500) visa under section 116(1)(g) of the Act as the prescribed ground applies to you under reg 2.43(1)(o).
In his response submitted on 11 October 2017 the applicant gave reasons as to why his visa should not be cancelled:
·     I was never involved, participated nor privy to any fraudulent act or acts as regards the granting of my student visa.
·     I am confident that I met the Genuine Temporary Entrant (GTE), Financial, English proficiency, Health and Character requirements etc. required to obtain an Australian student visa.
·     I do not have any criminal record both in Australia and in my home country.
·     I have never been associated with or involved with criminal conduct over here in Australia.
·     I am presently not a risk to the health, safety or good order of the Australia community, but have worked towards contributing to the care & wellbeing of its elderly citizens and people living with disabilities.
·     DIBP can also confirm from Kincare Australia (am a Home Care Worker) that I have dutifully and passionately carried out care duties assigned to me and have even received positive/good feedback from its clients.
·     I also have a very impressive academic record at my present institution of study with good grades to show for it.
·     Lastly, I have an elderly father (75 years old) who suffers from Parkinson’s disease, chronic Hypertension and Type 2 Diabetes Mellitus. Due to the economic hardship back home in country, I foot his medical bills from over here and that is what has kept him alive this far. Any news or discovery that my visa is cancelled will be very devastating for his health.

In an email accompanying the applicant’s submission, on 11 October 2017 the representative made the following statement:
·     While our client appreciates the operation of the law, he is astounded and dismayed as to why he should be the innocent victim of a fraud committed by a departmental employee. The onus is on the Department to have in place proper governance and systems to ensure fraud by departmental officers is not possible.
·     Our client and his family have committed a great deal of finances and resources to get him to Australia so he can receive an education which will enable him to obtain a better position and a higher salary upon his return to Nigeria.
·     Our client is undertaking his studies and should his visa be cancelled, the monies and effort expended to date will have been wasted.
·     … Our client did not participate in the fraud. He has a genuine belief that he was genuinely granted the student visa, travelled to Australia and commenced his academic life.
·     It is assumed that the visa may not have satisfied the financial capacity requirements.
·     At the time of application decision IMMI16/018 was the relevant instrument which provided a narrow source of acceptable funds. However, that instrument has now been replaced with IMMI17/012 which enables funds can be provided by any individual.
·     We contend that if the decision was to be made today, then the visa would most likely be granted.
·     We ask the Department to show consideration to the visa holder as he is the innocent victim of the fraud which was perpetrated him by a departmental officer.
·     To put this matter beyond doubt, the visa holder wishes to lodge a fresh student visa application onshore to put the matter beyond doubt. We have drafted the application and just await his approval and credit card details to lodge the fresh student visa application.
·     Our client has a genuine intention to complete his current studies and to resume his employment in Nigeria.
The Tribunal is required to make findings as to whether the ground for cancellation exists.
Regulation 2.43(1)(o)
The Departmental file contains information indicating that there was fraudulent conduct in respect of the grant of the applicant’s student visa. The information indicates that despite being flagged as a high risk applicant, and without the visa application being allocated to the employee involved in the fraudulent conduct, the employee acted without authority and granted the visa. The evidence is that the relevant employee did not apply mandatory guidelines for visa assessment which included the rigorous assessment of cases flagged as “high risk” on the basis of the applicant’s Nigerian nationality. The evidence before the Tribunal indicates that the employee failed to undertake checks to verify a number of matters including a sponsor’s letter and the veracity of the applicant’s past employment. This was contrary to mandatory procedural requirements.
The Department reviewed the applicant’s original application, together with a number of the affected applications to assess whether the visa holders would have satisfied the student visa requirements. The Department 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. Relevantly, it was noted that, amongst other things, there were similar courses available in South Africa and Nigeria, the employment letter contained spelling anomalies, the company had no web presence and the company was not registered to the address provided. The applicant had also not provided a sponsor letter in support of his application.
In submissions to the Tribunal, the applicant stated he chose not to study in South Africa due to xenophobia and outbreaks of violence against foreigners and because the education system was no better than in Nigeria. He advised he did not want to study in Nigeria because graduates with foreign degrees get better jobs and the tertiary education system is poor in Nigeria. He decided to study in Australia because he wanted a foreign degree and having been enrolled in a foundation course in the UK, he found Australia was a cheaper alternative to continue studying. Nevertheless, the applicant conceded, with regards to his original application, there was a spelling anomaly in his company name which he claimed was a misprint; his previous employer does have a website, (no information was provided as to how long a web presence has existed); and a sponsor letter had not been provided due to an oversight on his part.
The Tribunal is satisfied that the concession by the applicant that the visa application contained errors and did not include relevant information supports a finding that the Departmental officer did not check or verify aspects of the application. The conclusions of the Department that the applicant did not meet cl. 500.212 are strong and highly persuasive evidence that the relevant employee who granted the visa failed to give regard to mandatory procedural and legal requirements. The question is whether that conduct was fraudulent.
It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient.[1] A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[2] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[3] 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.[4] The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[5] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[6] 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.[7]
[1] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).
[2] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [86] (per Flick and
[3] Sun v Minister for Immigration and Border Protection at [48] (per Flick and Rangiah JJ).
[4] ibid at [48] (per Flick and Rangiah JJ).
[5] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18] (per Judge Driver)
[6] Ibid.
[7] 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].
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. 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.[8]
[8] Procedures Advice Manual - PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’
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 phrase is not defined in the Act or Regulations but adopting the plain and ordinary meaning of the phrase would suggest that a ‘causal connection’ is required. That is, but for the fraud the visa applicant would not have obtained the visa. This is consistent with Departmental policy. Relevantly, 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”.[9]
[9] ibid
Regulation 2.43(1)(o) refers to 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).
The Tribunal accepts that an LES executed visa grants without the visa application cases being allocated to them, in circumstances where they were not authorised to process such cases and where they failed to apply the mandatory guidelines. The Tribunal accepts and finds that the applicant is one a number of Nigerian nationals who were granted student visas as a result of the corrupt conduct by a Departmental officer. The Tribunal accepts that the applicant was flagged as a ‘high-risk’ client on the basis of his Nigerian nationality and that his visa was granted in a manner that did not comply with mandatory procedural requirements for ‘high-risk’ clients.
Consistent with the above authorities and guiding principles, the Tribunal is satisfied that there is probative evidence to give rise to a reasonable suspicion founded on objective circumstances, that there has been fraudulent conduct by the LES who acted with deceit and in breach of confidence where there has been an advantage gained by unfair means, namely the visa grant. The Tribunal finds that the conduct of the Departmental officer was fraudulent in that it was, amongst other things, deceitful, dishonest, breached confidence and trust, and a misuse of position. On the evidence, the Tribunal is satisfied that but for the fraud, the applicant would not have been granted the visa. That is, the Tribunal finds that the applicant’s visa was obtained as a result of the fraudulent conduct.
The applicant’s representative has contended that if the decision was to be made today, then the applicant’s visa would most likely be granted. The main question is whether at the time of assessment of the visa application, he met all criteria. The evidence before the Tribunal indicates that at the time the LES granted the visa, there was insufficient evidence, lack of adequate scrutiny, and failure to follow mandatory procedures.
The applicant has claimed that he did not know, and was not involved in any way in the conduct of the Departmental officer. Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. The Tribunal has some doubts about the applicant’s contentions that he did not know, or was involved in any way in the conduct of the Departmental officer but for the purposes of r.2.43(1)(o), the Tribunal does not have to be satisfied that the applicant was involved himself in the fraudulent conduct.
For the stated reasons, the Tribunal finds that the applicant’s visa was granted as a result of the fraudulent conduct of the Departmental officer and consequently the requirements of r.2.43(1)(o) are not met. The Tribunal is therefore 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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
· the 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
The applicant gave evidence that he came to Australia to study management to be able to obtain a higher position in his home country. He claimed graduates in Nigeria cannot find jobs and that studying there is a waste. The applicant’s evidence was that he had been employed in Nigeria in an internet café and he plans to return after studying in Australia. He advised he had applied to study in the UK but found it to be too expensive due to the currency exchange rate and he chose Australia instead. According to the applicant, there are large industries in Nigeria such as oil and telecommunications companies and they prefer overseas educated employees. The applicant has been, and still is, enrolled in a Diploma and Advanced Diploma of Leadership and Management. He explained his lack of progress to date as being due to having been detained by Australian Border Patrol which interrupted his studies and delayed his progress. In support of his claim to be a genuine student the applicant referred to his secondary school results and his English test scores. He also claimed at the hearing that people who intend to travel to Australia fraudulently would be unlikely to enrol and study.
The applicant has been employed as an aged care support worker while in Australia. In a written response to the Department dated 11 October 2017 the applicant advised he has been employed by Kincare Australia and has received positive feedback about his work. In the same written response the applicant stated: I have an elderly father (75 years old) who suffers from Parkinson’s disease, chronic Hypertension and Type 2 Diabetes Mellitus. Due to the economic hardship back home in country, I foot his medical bills from over here and that is what has kept him alive this far. When asked about this during the Tribunal hearing the applicant said his father has a chronic illness and he does send money from Australia to assist with medical costs. The applicant sought to clarify his written statement by saying that “pay” may not be the right word.
The Tribunal acknowledges the applicant has maintained enrolment and studied, however, he also has long term part-time employment that allows him to provide financial support to his elderly father. The Tribunal gives the applicant’s enrolment some weight in his favour but is not satisfied his primary purpose in coming to Australia was to study. The applicant’s reasons for wanting to gain overseas qualifications are vague and contradictory (he has stated in his evidence that he plans to return to his former employment at Starz Computers but also referred to oil and telecommunications corporations in Nigeria who give preference to those with overseas qualifications). The applicant is working in an unrelated field in Australia and does not appear to have management experience. The fact that the applicant was granted the visa as a result of the fraudulent conduct of a Departmental officer who did not undertake the mandatory checks raises doubts about whether or not the applicant would have met the relevant visa criteria, including but not limited to, the genuine temporary entrant (GTE) requirement which is essentially an integrity measure to ensure that the student visa program is used as intended.
In his response to the Department’s 359A letter inviting comment or response to information, the applicant agreed there were errors in his application and that he did not provide a sponsor letter. He claimed that his employer did have a web presence but that may have been a recent development. There is no evidence the website provided was in existence at the time the applicant applied for his Student visa.
On balance and having considered the evidence before it, the Tribunal is not satisfied that the applicant’s original intention to travel to and stay in Australia was to study. The Tribunal considers there were other motivating factors such as regular part-time employment and the ability to earn money to support his elderly father. Regarding any compelling need to remain in Australia the applicant stated at the hearing that the only thing keeping him in Australia is study. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions. The Tribunal has taken this into account but compliance with visa conditions is expected and consequently, the Tribunal gives this aspect neutral weight.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant stated his focus and “inner peace” has been affected and so far he has paid school fees in the amount of $10,400. On 1 November 2019 the applicant stated “I have expended a substantial amount of funds in undertaking and paying for my course of which I am part way of its completion”. In his written response to the Department on 11 October 2019 the applicant stated in relation to his elderly father: “Any news or discovery that my visa is cancelled will be very devastating for his health”.
Also on 11 October 2017 the representative submitted the applicant and his family have committed finances and resources for him to study in Australia so he can receive an education leading to a better position and a higher salary in Nigeria. It was also claimed the applicant is undertaking his studies and if the visa is cancelled, the monies and effort expended to date will have been wasted. The representative stated the applicant did not participate in the fraud and believed he was genuinely granted the student visa, after which he travelled to Australia and commenced his academic life. The Tribunal accepts the applicant will suffer a degree of hardship if his visa is cancelled and places some weight in his favour in considering whether to exercise the discretion to cancel his visa.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The Tribunal is required to consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the ground for cancellation existing. The policy 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.
The applicant has maintained that he was not aware of, or involved in the fraud. It was suggested the applicant’s genuine application must have been mixed with corrupt applications in order to mask fraudulent activities. In response to the Department’s notice of intention to consider cancellation, the representative submitted that the applicant had no involvement or knowledge of the fraud and that if he were assessed now, he would meet the criteria for the grant of the visa.
The applicant’s visa was cancelled under s.116(1)(g) but the applicant’s explanations must be considered in the context of s. 99 of the Act which provides that:
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the noncitizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

The applicant has conceded a sponsor letter was not included in the application which was an oversight on his part, and there was an unintentional errors. The Tribunal is satisfied that the applicant was under a legal obligation to ensure that all information provided in the visa application was complete and correct. Even if the Tribunal were to accept that the applicant was not involved in the fraud, the applicant is responsible for the information provided in the application. The Tribunal does not consider that this was beyond the applicant’s control.
Regulation 2.43(1)(o) provides that for the purposes of s.116(1)(g) the prescribed ground is that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. For the stated reasons, the Tribunal found that the applicant’s visa was granted as a result of the fraudulent conduct of the Departmental officer and consequently the requirements of r.2.43(1)(o) are met. The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. He responded to the notice of intention to consider cancellation and provided evidence in support of the application for review. The Tribunal has given some weight in favour of the applicant this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act and the Tribunal gives this aspect neutral weight.
· whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
· whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
On 1 November 2019 in his response to the Tribunal’s 359A letter inviting him to comment on or respond to information, the applicant outlined his reasons for choosing to study in Australia and not in Nigeria or South Africa. This was in response to the issue of whether there were similar courses available in his home country or South Africa at the time he applied for a Student visa. He included web sources to support his reasons which relate to xenophobia and poor quality of education in South Africa; poor quality education in Nigeria as well as foreign degrees being preferable; and the fact that Australia shares its heritage with the UK where the applicant first applied to study. The applicant also referred to his Senior School Certificate results, PTE English score and current studies as evidence he is a genuine student. The Tribunal has considered the applicant’s evidence in this regard but finds it does not outweigh the reasons in favour of the Tribunal exercising the discretion to cancel the applicant’s visa.
On 1 November 2019 when the applicant submitted his response to the Tribunal’s 359A letter, the representative made a statement regarding the applicant’s current circumstances in Australia as follows:
Mr Nkwocha has demonstrated by his presence in Australia that the grant of the student visa was justified. The review undertaken by the Department following the corrupt activity of one of its officers cannot be considered to be impartial or independent of the initial visa grant. The ‘review’ officer did nothing more than rubber stamp the process by declaring that the student visa would not have been granted in the first instance. The simple fact is, the student visa was granted, Mr Nkwocha arrived in Australia and has been a model student and temporary entrant since his arrival. We commend the AAT to restore Mr Nkwocha’s student visa.
The Tribunal notes the statement provided by the representative but does not accept the claim that the Department’s review and finding that the applicant’s visa would not have been granted was made without proper consideration. The investigation found, and the applicant has acknowledged, there were in fact deficiencies in his application albeit the applicant has claimed they were either simple mistakes or oversight. For the reasons provided, the Tribunal considers it appropriate in all the circumstances to exercise the discretion to cancel the applicant’s visa.
Conclusion
The Tribunal has assessed the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal has taken into account that fact that a corrupt Departmental officer granted the applicant the visa notwithstanding deficiencies in the application. Those matters go beyond the applicant’s personal circumstances and they have wider implications in maintaining the integrity of the migration programme.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Wendy Banfield
Member

Rangiah JJ) citing George v Rockett (1990) 170 CLR 104 at 115 – 116.

Case Number 1724950 Page 9 of 19.

[2019] AATA 5437

27 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice