Ogbeide (Migration)

[2021] AATA 2839

Ogbeide (Migration) [2021] AATA 2839 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Ms Debra Osato Ogbeide
Miss Adesuwa Brooklyn Asemota

VISA APPLICANT:  Mr Osakpamwan Marvis Asemota

CASE NUMBER:  1909199

DIBP REFERENCE(S):  BCC2017/3803196 CLF 2019/18788

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 June 2021 at 12:35 pm (WA time)

DATE OF WRITTEN RECORD:                28 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Visitor Visa (subclass 600) for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

· public interest criteria 4020 for the purposes of cl.600.213(1) of Schedule 2 to the Regulations

Statement made on 28 June 2021 at 4:14pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant had provided false or misleading information – applicant did not know about the criminal activity – PIC 4020(2)(b) is met –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.213

APPLICATION FOR REVIEW

1. MEMBER: This is an application for review of a decision that was made by a delegate of the Minister for Home Affairs on 5 February 2019. That decision was to refuse to grant the visa applicant a Visitor (Class FA) visa under section 65 of the Migration Act.

2. The applicant had applied for the visa on 17 October 2017.  The Tribunal is aware, however, that there had been several earlier applications, which had been granted, in time.  And I will refer to those a bit later in this decision.

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 600.213(1) of schedule 2 to the Migration Regulations. I think it is appropriate for me to summarise directly from the decision record why that decision was made.

2. It was because the delegate considered the applicant did not satisfy one or more of the public interest criteria as defined in clause 600.213.  That provision states an applicant has to satisfy public interest criteria, there are quite a few, but in particular public interest criterion 4020.  And public interest criterion 4020 says as follows:

   That there is no evidence before the Minister that the applicant has given or caused to be given to the Minister an officer and even to this Tribunal during the review of a part 5 reviewable decision information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the period of 12 months before the application was made.

   There are other provisions, one being that:

   The Minister may waive the requirements, if satisfied that compelling circumstances affect the interests of Australia or compassionate or compelling circumstances affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the granting of the visa.

   I also note subclause 5 says that:

   Information that is false or misleading in a material particular means information that is false or misleading at the time it is given and is relevant to any of the criteria the Minister may consider when making a decision on an application whether or not the decision is made because of that information.

3. The key reasons [for refusal] were as follows.  On 17 October 2017 the visa applicant Mr Asemota made certain declarations in the visa application that were considered to be non-genuine.  He had declared no to the following question:

   Has any applicant -

   Well, being himself:

   - ever been associated with a person, a group or organisation that has been or is involved in criminal conduct?

   The first observation is it requires association and does connote some degree of knowledge as to the involvement in criminal conduct.

4. On 17 October 2018 the applicant provided an employer letter signed by a Mr Mordi, Felix Mordi, vice president of Bluekat Financial Services dated 12 October 2017.  The Immigration Department of Australia located publicly available material released by the Department of Justice in the US, well, from the Attorney’s Office, Middle District of Pennsylvania on 29 January 2014, which indicated that Mr Mordi and others had been indicted on multiple charges by a Middle District of Pennsylvania Grand Jury.

1. After 18-month process four defendants, including Mr Mordi, were eventually extradited to Harrisburg in Pennsylvania and they pleaded guilty to conspiracy to commit mail fraud, wire fraud and money laundering.

1. In 2012, Mordi was sentenced by a Judge Rambo to a term of incarceration of 53 months, so around about five and a half years.  The delegate considered that as the applicant is employed by Mr Mordi that he does have an association with him and therefore an association with a person who has been involved in criminal conduct.  Therefore, it seemed likely to the delegate that the applicant had provided false or misleading information to the Department by declaring no to the question:

   Has any applicant ever been associated with a person, a group or organisation that has been or is involved in criminal conduct?

2. There was further reference to Department policy in that decision.  There is no need for me to identify that [policy], it not being an obligation that I have to follow policy, but I do need to be aware of it and give it consideration.

1. There was no information provided which indicated that the applicant was seeking a waiver of public interest consideration 4020.  The applicant has provided reasons for that, which I will address soon.

1. The delegate was satisfied there were no compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. Based upon all of that the delegate was not satisfied that the applicant meets public interest consideration 4020(1) of PIC 4020 and accordingly, clause 600.213(1) was not met. So, they were the reasons.

2. The review applicant appeared by telephone before the Tribunal this morning as did the visa applicant also by phone from Nigeria.  I chose for reasons that will become clear not to receive any extensive evidence from the review applicant and nor from her daughter‑in‑law or from her sister.

1. So, the issue in this review, well, there are two issues, the first is whether the visa applicant meets public interest criterion 4020 as required by clause 600.213(1) for the grant of the visa. Without restating what I have already said I need to identify that this requires there is no evidence that the applicant has given or caused to be given to the Minister, an officer, the Tribunal and others information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made.

1. I should note there is no suggestion that he gave false or misleading information in relation to other visitor visa applications that were successful.  I also note there is no suggestion that the visa applicant breached any conditions or overstayed in relation to those earlier visitor visas.

1. Secondly, the applicant and each member of the family unit must not have been refused a visa because of failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or refused unless the applicant was under 18 at the time the application for the refused visa was made.  There is no suggestion of the applicant or a member of the family unit being his partner and his daughter having been refused a visa because of PIC 4020(1).

1. The applicant must satisfy the Minister as to his identity pursuant to PIC 4020(2)(a).  I note there is no issue raised as to his true identity.  I accept he is who he is.

1. The other requirement is neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy PIC 4020(2)(a) during the period starting 10 years before the application was made and ending when the visa is granted or refused unless the applicant was under 18 at the time the application for the refused visa was made.

1. There is no information before me from the Department file or elsewhere that he was refused a visa because of failure to satisfy PIC 4020(2)(a) during the period starting 10 years before the application was made.  As I read from the delegate’s decision a moment ago, these requirements in PIC 4020(1) and (2) can be waived, if there are certain compelling or compassionate reasons to justify the granting of the visa.

1. Now, the first issue is did the applicant give or cause to be given information that is false or misleading in a material particular?  If the answer to that question is no, then everything falls by the wayside and I would be required to remit the matter back to the Department for it to reconsider.  Of course, if I do find that he did give information that is false or misleading in a material particular, that is not the end of the story because I must then go onto consider whether there are any compassionate or compelling reasons for justifying the grant of the visa.

1. I note that the term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5).  Now, I note that the requirement in PIC 4020(1), not to give false or misleading information, applies whether or not the Minister became aware of the information that is false or misleading in a material particular because of information given by the applicant himself.  It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

1. Importantly, while PIC 4020 refers to information that is false in the sense of being purposely untrue it is not necessary for the Minister or the Tribunal to conclude that the applicant was actually aware the information was purposely untrue in order for PIC 4020 to be engaged.  But importantly for this matter there must be some element of fraud or deception by somebody, which could include the applicant but not necessarily, in order to attract the operation of the provision.  The reference or the authority for that position is Trivedi v the Minister of Immigration and Border Protection [2014] the Full Court of the Federal Court of Australia at 42.

1. So that is the foundation or the background under which I give this decision today.  I need to spend some time identifying particular documents of relevance.  I have, of course, viewed the Department’s file.  There is a birth certificate from New South Wales, an extract.  I am satisfied that the visa applicant and the review applicant are the natural parents of a child, a female child, who was born in Bankstown Lidcombe Hospital on 6 September 2011.  Her name is Adai Sua Asemota.  From the birth certificate it also indicates that the parents were both born in Nigeria.  I accept that as being true and accurate.

1. There is a copy of the daughter’s Australian passport, it expires in 2023.  There is a copy of the review applicant’s Australian passport, that expires in November 2022.  And also, a copy of the applicant’s Canadian passport, which I think expires in 2026 issued out of North York in Canada.  There is also a copy of his Ontario driver’s licence.

1. It is worthwhile pointing out that the review applicant according to the records entered Australia on 17 April 2008.  There have been quite a few return visits to Nigeria over the years, 2010 there were several.  2011, 2012, 2013, ’14, ’15, then there was a gap until 2018.  Her most recent departure to Nigeria was 4 October 2018 and she came back on 27 October 2018.  So, it is very clear that she has maintained a strong connection to her home country.  Of course, Australia is also her home country now, she is an Australian citizen.

1. I have looked at the movements for the visa applicant and he confirmed the following travel movements with me.  He arrived here at first on 30 June 2010 and stayed for about two weeks departing on 14 July 2010.  He came back on 30 December 2011, departed 26 February 2012.  He came back again later that year on 17 October.  Sorry, it was not that year, it was the next year, 17 October 2013 and he departed 14 days later on 31 October 2013.  He came back on 15 December 2016 and departed on 12 March 2017.  He returned again for the last time on 20 March 2017, departing on 26 June 2017.

1. The initial visit here appears to have occurred whilst he was living – or he departed from Nigeria but all of the other return visits he appears to have departed from Canada.  It matters not in any sense.  There is no cause for concern to me about his travel movements.

1. The applicant provided a statutory declaration whilst in Canada.  That was declared in Canada on 12 April 2019.  In that statutory declaration he confirms he holds dual citizenship being Canadian and Nigerian.  He confirms that he applied for the visitor’s visa on 17 October 2017 for the purpose of visiting the review applicant and their daughter who are both Australian citizens.  He provided a letter of employment amongst other documents that he had attached to his application.

1. On 19 October 2017 he received a letter from Australian Immigration requesting a police clearance, a character declaration with respect to his visa application.  He did provide the requested information and that reply is marked as exhibit A.

1. He then received another letter four days later being 23 October 2017 from Immigration requesting the same information but stating that the clearance should be conducted by the Royal Canadian Mounted Police.  He declares that in compliance he did that clearance with the RCMP and sent proof of the police clearance.  That is marked as exhibit B.

1. He received yet another letter email dated 21 November 2017 requesting for further personal particulars for character assessment.  He sent that to the Australian Immigration in accordance with the seven-day deadline.  That was marked as exhibit C.

1. He received another email with a letter attached dated 12 January 2018 from Australian Immigration for him to provide bank statements with seven days’ turnaround.  He did send that.

1. He received another email with a letter dated 23 January 2018 informing him that the processing of his application is on an individual basis and circumstances and time variance and in accordance with Australian Immigration law.  The Department were not able to provide him with a definitive time frame for finalisation of the application.  That is referred to as exhibit E.

1. He received an email with a letter dated 15 February 2018 informing that there was a delay because the application had been referred to the visa applicant character consideration unit.  That is marked as exhibit F.

1. There was yet another email with a letter dated 20 March 2018 to provide clear copies of passports for the past 10 years.  They were sent.  And they are marked as exhibit G.

1. Further, he received another email with a letter dated 6 April 2018 requesting for additional passport information, which he inadvertently did not attach to the previous passport copies.  Accordingly, he sent them and that is marked as exhibit H.

1. Now, somewhat relevantly on 19 July 2018 he sent an email to find out the status of the application.  He received an auto response that the email had been received at the Department’s end.  That is referred to as exhibit I.

1. Now, what is clear up to that point is there had been a lot of toing and froing between the applicant and the Department.  Now, it is pretty clear to me that by 19 July 2018 the applicant was somewhat frustrated with the process.  And without being critical of either side I think one can understand how people would become frustrated.

1. Now, the next contact he had was about eight months or roughly eight months later and that was a letter dated 5 February 2019 and that was the decision as to the refusal of the application.  It referred to him failing to respond to the natural justice email sent to him on 26 July 2018.

2. Now, the applicant claims that he was surprised when he received that particular email because he had never seen the email.  It was not according to him in his inbox.  He then conducted a thorough search on his email after being alerted and he found that the said email had not gone into the inbox, it had gone into the mail spam or perhaps that can be called junk.  But he did not see it at the time that it was sent.  He claims that he would have responded to it as per all of the other emails, if he had become aware of it.

1. Now, the question that obviously arise for the Tribunal was, well, if he had received all of those other emails in his inbox why would it have been the case he did not see the 26 July 2018 email and that was canvassed with him during the hearing.  I note exhibit J, which appears to indicate the email of 26 July 2018, being received into spam or junk.

1. Now, he also spells out in these submissions what he would have responded to had he received the email, and this is what he would have responded:

   The officer indicated that I had declared no to the following question:

   Has any applicant been associated with a person, a group or organisation that has been or is involved in criminal conduct?

   Obviously, he claims that he did not, but my understanding also is that if he did, he was not aware of that criminal conduct.  He claims in his statutory declaration that:

   The Immigration officer concluded that a Felix who was the vice president of Bluekat Financial Services, my employer, was indicted on 29 January 2014 on money laundering charges in 2012 and was extradited to the US.  In response I wish to state that I started working with Bluekat Financial Services on 4 October 2013.  At that time I never met him in the company and was not aware he was the vice president of the company.  Mr Felix only returned back to the company to the best of my knowledge in 2017.  I was not aware of the criminal indictment until I received the letter from the Department as to refusal.  I am only an employee of Bluekat Financial Services and not one of the owners or board of directors of the company.  Neither do I have a personal relationship with directors of the company.  On this note I would not be assessable to the information regarding their personal lives.

   I think the word probably should be accessible.  In any event it makes no difference.

   I perform my duties as a business analyst with the company.  I have no business with the management and decision making of the company’s affairs.  I am a salary worker.  I do not have anything to do with the financial transactions of the company.  Hence, I was not aware of the criminal offence Mr Felix committed in 2012 that the officer referred to.

2. He was aware that Mr Felix Mordi passed away in July 2018 having suffered from cancer.  He makes the point in concluding that he has a daughter and a partner who are Australian citizens and are resident in Sydney.  His partner is gainfully employed.  At time of statutory declaration, he had not been able to see his daughter and his partner because it somewhat down the track now.

1. He has no criminal records anywhere in the world.  The Tribunal accepts that that is so.  And there is no evidence or suggestion that the visa applicant was actively involved in any fraud or criminal conduct himself whilst an employee of Bluekat Financial Services or at any other time, I accept that.

1. He says he has no reason not to leave Australia after his visit because he is gainfully employed in Canada.  Of course, that is not the situation at the moment, but I will talk about that soon.  There are a lot of documents provided, I have read all of those.  They were the exhibits; I have already referred to them.

1. Before the hearing I had researched on Mr Mordi and I was able to confirm for myself that he passed away on 7 July 2018 at the age of 49.  His funeral was held on 20 July 2018 apparently in Toronto.  Also prior to the hearing, I had researched on the company Bluekat Financial Services and it seemed to me from photos of it and the address 1017 Weston Road in Toronto that it was adjoined to a travel agency called Bluekat Travels.  It appeared to be a pretty basic establishment and obviously whilst I could not see inside the premises it consisted of a doorway, a window, it appears to have an upstairs.  But I am very satisfied that it is not a particularly salubrious business establishment.

1. Before the hearing today I had also researched on Mr Mordi and I came up with an article titled “Midstate fraud victims to benefit from proposed $100 million agreement over MoneyGram scams”, which is written by a Matt Miller.  The text of it is as follows:

   MoneyGram International Inc is one of the world’s largest money transfer firms.  It has reached a tentative agreement to pay $100 million to avoid –

   US dollars I think that is:

   - federal prosecution over charges that its agents engaged in extensive wire fraud schemes, the US Justice Department announced today.

   And I should say the date of this article is 9 November 2012.

   Victims of those scams included residents in multiple central Pennsylvania communities, including Harrisburg, Palmyra, Elizabethville, Dover, Chambersburg and State College.

   The agreement was reached after a legion of MoneyGram agents operating in both the US and Canada were charged and/or convicted in wire fraud and money laundering cases.

   Under the tentative deal, the Justice Department agrees to forgo prosecution of MoneyGram itself provided it pays the $100 million for victim compensation and cooperates fully with federal investigators in ongoing criminal probes.  The Minnesota-based company also must hire an independent compliance monitor to be approved by justice officials.

   The conduct described in the (settlement agreement) is unacceptable to MoneyGram and counter to everything that it strived to stand for," said an official of the company. MoneyGram accepted responsibility for its employees’ wrongdoings.

2. Now, the background is that according to the US Attorney’s Office, 11 former MoneyGram agents convicted in fraud cases to date have been ordered to pay more than $20 million in restitution to victims.  Sentences in those cases have ranged from 27 months to 118 months.  Three other MoneyGram agents accused of fraud are fugitives.  Two are to be extradited from foreign countries and four are awaiting sentencing and prosecution.

1. The article referred to an agent by the name of James Ugoh and it was for this reason that the Tribunal raised that person’s name with the applicant.  Ugoh was sentenced to 118 months in prison and ordered to pay four million dollars in restitution.  Ugoh was a tribal chief in his native Nigeria and was the linchpin of a mass marketing scam which used bogus sweepstake prizes, awards, loans and other subterfuge to lure victims. Unwitting victims were convinced to cash counterfeit cheques and wire part of the proceeds via MoneyGram to the scammers who claimed the money would pay for taxes, customs duties, insurance and other costs associated with non-existent windfalls. The MoneyGram agents intercepted the cash transfers and laundered money by depositing it in their bank accounts.

1. Now, I think that is important to note that the money was deposited into their personal bank accounts and was then transferred through to other accounts at several other banks.  Ugoh and co‑conspirators being Kayode Kassim, Abel Ogunfunwa And Felix Mordi who all operated out of Toronto ran the scheme for about five years before being netted in a probe that involved US postal inspectors and the Toronto Police.

1. Before the arrests MoneyGram closed the outlets of Ugoh, Mordi and Ogunfunwa due to high levels of fraud complaints according to their indictments.  I note there is no suggestion before me that the company for which the visa applicant worked for appears to have been closed or that it ceased trading and I think that is of some significance.

1. Of note is that Kassim, as of 2012, was serving a 70-month prison term and ordered to pay $3.1 million.  Mordi was serving 53 months in prison and had a four-million-dollar restitution order.  Ogunfunwa was sentenced to 63 months in prison and ordered to pay back four million dollars.  So that is all of some significance, I think.  So, it is pretty clear that Mordi was, for some significant period of time, in prison.

1. I spoke to primarily the visa applicant today.  He is nearly 41 having been born in 1980 in Nigeria.  Both his parents are deceased.  He has three brothers and no sisters.  He has extended family being aunts, nieces and cousins in Nigeria and some are living in Belgium.  He had last seen those relatives on a trip to Belgium in either 2017 or perhaps early 2018.  He had visited because one of the relatives was getting married.

1. He had met the review applicant Debra online through Internet introduction.  He had first seen her when he visited Australia on that visit I have already referred to being 30 June 2010.  He had stayed in a hotel and had gotten to know her a bit more.  He came on his own, he did not know anybody in Australia.

1. In 2010 he was living in Canada as a resident.  I have to correct something that I had said earlier and that was I thought that he had travelled from Nigeria in that trip.  It appears that he did not, he travelled from Canada.

1. He had actually moved to Canada in 2005 upon a refugee visa.  The circumstances of that visa are not particularly relevant.  He had travelled to Canada on his own.  He became a Canadian citizen in 2011.  When he originally went to Canada in 2005 he was aged about 28 or 29.  He had not done any meaningful work in Nigeria but he had studied for a Diploma in Business and Management, which he finished in 2004 the year before he left that country.

1. I then ran through the various visits to Australia, they were all confirmed, and as I have already said, there is nothing implicit within the travel itself that causes me to have any concerns.  It is clear that those visits were primarily for the purposes of him visiting his partner and also his daughter who I think is aged roughly about nine at the moment.

1. He was not in Australia at the time of her birth.  He confirmed he is not married to his partner.  But he does describe that he is a hundred per cent committed to that relationship.  It appears to me having assessed all of the evidence that there are still conversations going on as to the longer-term plans for the relationship in terms of location.

1. He outlined quite briefly some depression and anxiety concerns suffered by his partner.  But he also has suffered from those conditions I accept.  The need to be supportive for his partner and daughter has been a key motivation for him wishing to get back to this country, I accept that.  It is noted that the review applicant also has a sister living in Australia, her name is Joyce. 

1. It seems that Debra has travelled to Nigeria.  She returned in 2011 and that was for a traditional Nigerian wedding.  And he told me that traditionally Debra is his wife.  At the time of the hearing the applicant was not in Canada, he had returned to Nigeria and it appears that was due to his deteriorating mental health.  He returned in late 2020.

1. He told me that he wishes to return to his business in Canada or to live back in Canada in mid-2021, if possible, and will return to Toronto.  At the moment he does not have a job in Canada but does own a business, which contrary to his previous experience, work experience, is involved in handyman work and maintenance.  The name of that business is Asemota Enterprises and is based at 2468 Eglington Avenue West, which is where he lives.  It has no employees.  He also lives at that address and lives on his own.  He has returned to Nigeria a couple of times whilst living in Canada.

1. I asked him his understanding as to why the application had been refused on this particular occasion.  It is fair to say that his recollection was not one hundred per cent accurate but was generally reflective of the decision.

1. I then spent some time with him confirming some details that he had included in his statutory declaration.  One of the concerns for me was that from about 19 July 2018 to 5 February 2019, a period of about eight months, he had not been making any inquiry in relation to the status and that seemed to me at firsthand to be inconsistent with what had been occurring earlier in 2018 where there had been a flurry of communication between the Department and himself by which he had actually made an inquiry out of frustration in my view as to where things were at.

1. He explained that away and confirmed that he was frustrated but he confirmed that there had been an earlier communication indicating that there was going to be a delay and the reasons for that.  I am inclined to accept that explanation as to the delay.

1. I asked him whether he knew an address of Weston Road in Toronto.  The reason I asked that was because I was then aware that Bluekat had been based at that address.  He confirmed it was where he used to work, it was called Bluekat Financial Services, and he had started work in about October of 2013.  He had completed work in late 2018 or early 2019.  And that meant that he had been employed in the business for five to six years.  He had been looking for a part-time job.  He says that he has had some tax related affairs that he needed to seek advice about in relation to what I assume was income tax.

1. He had come to meet who he thought was the proprietor owner of the business at that time, who was an African or Canadian African gentleman by the name of Geoffrey Williams.  He believed he was the owner.  It appears clear that Mr Williams offered him work.  He said that he sometimes worked at the office for a couple of days a week but sometimes he would work outside.  He described his role in that outside work and it appears to me as being in effect touting for customers.

1. I asked how many other people worked in that office having made myself aware through my own research that it was quite a frugal business premises.  He said there was a lady called Roslyn who was the accountant.  There was an administration officer called Latife and there were perhaps two other employees.  I would not have expected him to have remembered the two other employees.

1. Relevantly I asked him whether at the time that he commenced he was aware of any other owners, so this would have been 2013.  He said to me that he was only aware of Geoffrey [Williams] at that particular time and it was only when he received the decision from the Department that he had become aware of this Felix [Mordi] and his alleged involvement in criminal activities.

1. In fact, it was only in about 2017 that he became aware that Felix had any interest in the business and for the four years between 2013 and 2017 he thought that Mr Williams was the sole proprietor. He told me that in about 2017 Mr Felix had become much more involved but that could not have been for too long because he had cancer and, as I have already said, he died the following year.

1. The visa applicant told me that when Felix had been frequenting the office more often, he started to become aware that Felix had much more involvement in the decision making of the business than he had previously been aware of.  He had previously thought that it was Mr Williams who was making the business decisions.  He confirmed to me that Felix was to his knowledge also from Nigeria.

1. It seems strange to me why a financial related business would need to be sending out employees to go out and find business or find customers.  He explained to me that there was a lot of competition and the business was clearly targeting people from various ethnicities, if I put it that way, African people, Latinos, people from the Caribbean and others.  Whilst that is unusual in terms of Australia, [I think] I am not prepared to make adverse comments in relation to that.

1. He told me that he did not have his own office [space] in the business premises and that it was only Latife and Mr Mordi, Felix Mordi, that had separate office areas.  The reason that I was inquiring was that in assessing the likelihood that the visa applicant would not have at some point in time before 2017 have become aware of Mr Mordi’s involvement in the company because that was particularly relevant to the assessment.  He told me he did not go to Mr Mordi’s funeral in July of 2018.

1. I explored with the visa applicant as to whether he had ever heard of that company called MoneyGram, which I read out from the article.  He told me that he did and the reason he would know of the company was that it has an extensive international footprint also.  It is one of the main money remittance companies.

1. I explored with the visa applicant as to whether Mr Williams himself might have had some knowledge or involvement in this conduct involving customers from the United States, Pennsylvania or elsewhere.  He replied to me he was not sure, that he reported directly to Mr Latife, that Mr Williams has his own office, and that he could not have been aware of any such travel.

1. I then explored with the visa applicant whether Bluekat itself was doing business through fax or other electronic media, [the purpose being] to see whether Bluekat was [itself] was actually being used for this activity in some way.  It was clear that the visa applicant denied having any such knowledge.  And, as I have already said, there is no evidence that Bluekat was itself ever restricted from trading or that Mr Williams was being investigated by authorities himself. 

2. As far as I am aware from my own research, Bluekat continues to trade in some form.  It seems to me there is no evidence that Bluekat or Mr Williams or others working in the business were knowingly involved in any inappropriate conduct. It was clear that the visa applicant denied [ever] knowing the other co-conspirators James Ugoh, Kayode Kassim or Abel Ogunfunwa.  There is no evidence upon which I can draw any inference that he did [know them].

1. I asked why he left Bluekat after four or five years and he said to me he had been diagnosed with depression.  I then concluded the hearing asking why I should accept that he [the visa applicant] did not have any knowledge of Mr Mordi’s involvement in serious fraud criminal activities and he set out those reasons.  I received some very brief evidence from the review applicant which is not directly relevant to this part of my considerations.

1. The first thing I need to do is decide whether there is evidence that the applicant did give or cause to be given to the Minister, an officer or the Tribunal or certain others information that was false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made.

1. I readily accept that information about associations, including criminal associations, would in itself be a material particular in relation to an application for this type of visa, that is readily accepted.  It seems to me that the delegate made certain inferences or imputations by reason of the fact that the visa applicant had been employed within that business Bluekat, that there had been an employment letter signed by Mr Mordi on 12 October 2017, and further, that information was publicly available on the Internet about the criminality of Mr Mordi. All of that was pointing in the direction of the applicant.

1. There are other circumstances here and that is that the applicant did not commence with that business until late 2013.  It is noted that Mordi and the others had in fact, been imprisoned in 2012 the year before the visa applicant commenced.  Mordi was sentenced to a term of 53 months.  Assuming he served the whole period of incarceration, a period of perhaps five and a half years.  So, that would have taken Mordi’s imprisonment to perhaps around 2017, which is when Mordi became ‘present’ on the floor of the business and [was] having some [more apparent] role in the decision making of Bluekat.  It seems to make sense as to why the visa applicant would not have been aware of his [Mordi’s] earlier presence and involvement in the company Bluekat.

1. It seems to me that the visa applicant had quite a low level of responsibility and decision-making authority within that particular business Bluekat.  There is nothing before me that links Bluekat to itself having been involved in the criminal activity or that Mr Williams had been investigated, arrested or charged.  And, of course, it is the situation that the visa applicant himself was never investigated or charged by either US or Canadian authorities on the basis of him having some knowledge of what had been taking place.  And, of course, that was before 2013 in any event being when he started.

I note the delegate said:

As the applicant is employed by Felix Mordi -

Which he may well have done as of 12 October 2017:

- that he does have an association with him and, therefore, an association with a person who has been involved in criminal conduct.  It seems likely –

And I note the use of the word likely:

- that he has provided false or misleading information to the Department be declaring no to the declaration.

1. I [readily] understand why the delegate could have arrived at that conclusion, but it is not the only reasonable conclusion that can be arrived at, in my view.  I interviewed the visa applicant for over an hour and a half upon his claims, and having considered all of the information that I have found I think there is room to accept his account that he certainly did not know about the criminal activity and investigation at the time he started, taking into effect [consideration] that Mordi was imprisoned for several years, that he was dealing directly with Mr Latife, that he may not have had knowledge of the criminality [of Mordi and associates].

1. I think if there is any [room for] doubt, which I think there is, the visa applicant should have the benefit of that doubt. I give him the benefit of that doubt.  I see no evidence of fraud or deception by the visa applicant himself or knowledge of fraud or deception [by others].

1. It follows that I do not accept that there is evidence before the Tribunal that the applicant has given or caused to be given to the Minister, an officer, the tribunal, a relevant assessing authority or a medical officer of the Commonwealth information that is false or misleading in a material particular as defined in PIC 4020(5).  Therefore, the applicant does meet in my view PIC 4020(1).  There is no evidence that a visa has previously been refused on the basis of failure to satisfy PIC 4020(1).

1. He does meet PIC 4020(2).  There is no need for me obviously to consider the requirements of PIC 4020(1) or (2) concerning compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen.  I should say that had I made a different decision [regarding PIC 4020(1) and had to consider compassionate or compelling circumstances it would appear that there were a number of fairly significant considerations [for my consideration] in that regard.

1. I am satisfied the visa applicant did and continues to satisfy the identity requirements; he does meet PIC 4020(2)(a).  A visa has not previously been refused on the basis of a failure to satisfy PIC 4020(2)(a), therefore, PIC 4020(2)(b) is met.

1. On the basis of all of this I am satisfied the applicant does satisfy PIC 4020 for the purposes of clause 600.213(1). My decision is that I remit the application for a Visitor (Class FA) visa for reconsideration with a direction that the applicant does meet the following criteria for a subclass 600 visitor visa and that is public interest criterion 4020 for the purposes of clause 600.213(1) of schedule 2 to the Regulations.

   Michael Judd
   Member