Olawale (Migration)

[2020] AATA 1444

Olawale (Migration) [2020] AATA 1444 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Oluwafemi Ezekiel Olawale
Mrs Adejoke Precious Olawale
Master Oluwatunmise Toluwalase Olawale

CASE NUMBER:  1725581

HOME AFFAIRS REFERENCE(S):          BCC2017/3152736 BCC2017/3937123

MEMBER:James Lambie

DATE:16 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 April 2020 at 4:08pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – fraudulent conduct of any person – local department employees in Pretoria may have acted improperly – no attempt to check employment claims – insufficient documentation – intended study related to employment – changes to subject areas – reasonable suspicion of fraud – discretion to cancel visa –application under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 348, 362A, 375A, 376

Migration Regulations 1994 (Cth), r 2.43(1)(o)

CASES

Guo v Commonwealth of Australia [2017] FCA 1355

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

Rani v MIMA (1997) 80 FCR 379

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

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

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applies to the applicant, namely, that the Minister reasonably suspects that visa has been obtained as a result of the fraudulent conduct of any person. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence Mrs Adejoke Precious Olawale, the second named applicant.  

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. 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?

8. 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.

9. The applicant lodged a subclass 572 Visa application on 27 November 2015. The visa was granted on 8 February 2016 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia on 7 March 2016.

10. The Department conducted an investigation into the circumstances leading to the grant of a tranche of subclass 500 student visas at the post in Pretoria. The investigation determined that departmental employees may have acted improperly to grant those visas: the visa granted to the applicant was among those identified as improperly granted.

11. On 28 May 2019, the tribunal sent the applicant (through his representative) copies of documents contained in the departmental and Tribunal files in response to a request for written material made under section 362A of the Act, inviting the applicant to comment. Included in this material was a copy of a report entitled “Fraud by Locally Engaged visa Processing Officers at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation” (‘the Cancellation report’), together with a number of annexures.  Because these documents refer to a number of separate visa applicants, Departmental staff and law enforcement methodology, they are heavily redacted under ss 375A and 376.   I am satisfied that the redactions made in the documents provided to the applicant are necessary for the protection of the privacy of other individuals and for the purposes of law enforcement.  In any event, I have found no reason to seek recourse to any unredacted documents and am satisfied that the redacted details are neither of any potential assistance to the applicant nor relevant to the determination of the application.

12. The report and the other documents it references describe a Departmental investigation into the conduct of locally engaged staff in Pretoria arising from suspicions that some Nigerian student visa holders had been engaging in criminal activity after arriving in Australia. The investigation determined that two locally engaged staff had bypassed Departmental procedures in granting student visas to a cohort of Nigerian applicants. One of the staff (“Officer A”) had corruptly received payments from a person in Australia (“Mr C”, himself a Nigerian student visa holder). Officer A was found to have acted improperly and in breach of her conditions of employment.

13. The applicant’s visa application was processed and approved by Officer A.  The report refers to an allegation that the visa was granted in circumstances where the visa assessment procedures were knowingly disregarded.  Officer A made the grant having failed to apply the mandatory guidelines for visa assessment, including rigorous assessment for cases flagged “high risk”.   

14. Departmental systems record that the applicant was represented by Mr C in relation to his confirmations of enrolment (CoE) at the Australian Business School.  Officer A did not attempt to check the veracity of the applicant’s employment claims, contrary to mandatory procedural requirements.

15. In submissions and at the hearing, the applicant sought to challenge those findings and to invite positive findings that he did, at the relevant time, meet the relevant criteria. While I have doubts as to whether that is the correct approach, I accepted his submissions and documents into evidence. I would, however, observe that it appears quite clear from the Departmental material that the original delegate could not have and did not conduct any proper assessment of the visa application. The application was processed in a very short time and there were no steps taken to verify vital aspects against the required criteria.

16. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. The applicant’s first submission was that it cannot be established that the applicant was personally involved in the commission of any fraud. It is, of course, understood by the applicant that the ground for cancellation is the fraud “of any person” but I accept that it is appropriate in a case where the fraud is alleged to have been committed by another without the knowledge of the applicant to consider the circumstances more closely than where the fraud is that of the applicant. In particular, it is relevant to consider whether, absent the fraud, the visa would have been granted in any event.

17. In his visa application, the applicant lists his occupation firstly as a camera and coverage editor and later as a camera and photograph editor, employed by Essential Digital Enterprises. The business’s street address is provided but no telephone number is nominated and the “salary level” box is left empty. He has checked the boxes as to having attached documentation and evidence of his employment details, which comprises only a “letter to confirm employment” dated 23 March 2009. There are no contracts of employment (despite one being referred to in the letter), no payslips and no other material that might attest to the fact or nature of his employment.

18. The nature of his employment was, of course, important to the approval of his visa because in order to satisfy the delegate that he was a genuine temporary entrant he needed to establish that the course he intended to undertake (a certificate four in digital media technologies and a diploma of digital media technologies) represented a clear and logical pathway relative to his career. In his statement of purpose, he claimed that the courses he intended to undertake would “enhance the knowledge I already gained working with multimedia company, where I have worked for over six years.”

19. At the hearing, the applicant conceded that the evidence of employment was very thin will. In the posthearing submission, it was said on behalf of the applicant: “we can’t offer any argument on the lack of evidence of employment. The provided evidence is all that the applicant has.”

20. At the hearing, I questioned both the applicant and his wife as to the applicant’s previous employment and the enthusiasm he expressed in his statement of purpose for gaining qualifications in digital media technologies. I noted that, immediately on commencement, he changed his course to individual support (aged care) and then to automotive mechanics. He now claims that the prospect of working as a digital camera operator, or as a carer in a Nigerian nursing home, pale in comparison to eventually becoming amongst the best trained mechanics in Nigeria and running one of the best high-tech workshops in the country. Mrs Olawale gave evidence that it is now her husband’s dream to use his mechanical skills and set up his own workshop: she mentioned that he would be much more suited to that line of work, that mechanical skills were more useful than digital and that, in any event, he knows a lot more about auto mechanics than about digital. She said that he was not working long in digital anyway. Her evidence leads me to doubt very strongly the veracity of his statement of purpose and his employment history.

21. In these circumstances, I find myself in agreement with the conclusion reached by the departmental officer charged with assessing Officer A’s grant of the visa: that there are significant deficiencies in the visa application and that, absent the fraudulent conduct of Officer A, the visa would not have been granted.

    A reasonable suspicion that the visa was obtained as a result of the identified fraud

22. Having regard to the material above I have carefully considered whether the prescribed ground for visa cancellation exists. Departmental policy as to the scope of fraudulent conduct provides:

    ’Fraudulent conduct’ is not defined in the act or regulations. The Macquarie dictionary defines fraud as “advantage gained by unfair means, as by a false representation of fact made knowingly, all without belief in its truth, or recklessly, not knowing whether it is true or false”.

    ‘Any person’ means the visa holder or any other person, including a Departmental employee.

    Reasonable suspicion that a visa has been obtained as a result of fraudulent conduct[1]

    The delegate must reasonably suspect that the visa was obtained as a result of the fraudulent conduct of any person. That is, it 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.

    [1] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’

23. When assessing the ground for cancellation, the term ‘reasonably suspects’ requires a causal link to be drawn between the obtaining of the visa and the fraudulent conduct of any person. It is not necessary for the decision maker to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct.[2]

    [2] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22]

24. Guidance is available as to how a decision-maker ‘reasonably suspects’ the fraudulent conduct. It is not necessary for the decision-maker to be satisfied that the visa was obtained by fraud – a reasonable suspicion is sufficient[3]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture[4]. The factual foundation required to ground a reasonable suspicion is less than that required for a belief[5]. 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[6]. The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend[7]. It does not require the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities[8]. 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[9]. 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[10].

    [3] Ibid

    [4] Sun v Minister for Immigration and Border Protection [2016] FCAFC at [86], citing George v Rockett (1990) 170 CLR 104, 115-116

    [5] Ibid at [48]

    [6] Ibid

    [7] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18]

    [8] Ibid

    [9] Guo v Commonwealth of Australia [2017] FCA 1355 at [44]; Patel v Minister for Immigration and Border Protection, supra, at [23]

    [10] Guo v Commonwealth of Australia, supra, at [35]

25. It was submitted on behalf of the applicant that, while accepting that a departmental employee may have been fraudulent, it could not be accepted that his visa was obtained as a result of any fraud.

26. On the basis of the material before the Tribunal, I am satisfied that the facts and matters described in paragraphs 12 to 14, which have been subject to a rigorous departmental investigation, apply to the processing of the applicant’s visa. I am further satisfied that those matters constitute the fraudulent conduct of another person.

27. In order to form a reasonable suspicion that the applicant’s visa was granted as a result of the fraudulent conduct, there would need to be some evidence that the visa would not have been granted but for the fraud. On the basis of the matters contained in paragraphs 17 to 21 above, it appears clear to me that the visa, if properly processed, would not have been granted.

28. Taking all of these matters into account, I am satisfied that there is a reasonable suspicion that the applicant’s visa was obtained by the fraudulent conduct of Officer A. In making this finding, I have had regard only to the circumstances of the applicant visa application and not to the other cases in this cohort.

29. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

30. 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’.

31. The applicant and his wife gave oral evidence as to the hardship they might suffer if the visa were to be cancelled. I also received and have given careful consideration to the detailed written submissions of his representative.

32. I have considered the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. He arrived in Australia on 7 March 2016 as the holder of a subclass 572 student visa, the purpose of his travel and stay being to undertake a study in registered courses. As indicated in paragraph 20, the applicant has undertaken and completed courses in automotive mechanics. He says that he intends to undertake further studies in order to advance his qualifications. I give these matters some weight in his favour.

33. I have considered the extent of his compliance with his visa conditions. There is no indication that he has breached any of his visa conditions: his submissions tabulate the conditions in detail. I give this matter a little weight in his favour.

34. I have considered the degree of hardship that may be caused to the applicant and his family by the cancellation of his visa. The applicant gave evidence that, were his visa to be cancelled, it would cause financial and emotional hardship to him, his wife and his five-year-old son. These hardships would be occasioned by the money he has invested in travelling to and studying in Australia, and the shame that he would suffer should he return home without having completed his studies and under the shadow of having engaged in, or been the beneficiary of, fraudulent activity. I give these matters some weight, while noting that the applicant has achieved some academic qualifications and, as he claimed to be pursuing in his statement of purpose, training and immersion in the English language. In addition, he says that the cancellation of his visa would disrupt his wife’s employment as a process worker and would also disrupt his son’s schooling (noting that the child had not commenced school at the time of the hearing). Given that it was, at all times, clear to the applicant and to his family that the visa had been granted for a temporary stay, I give those matters only limited weight.

35. I have considered the circumstances in which the grounds for the cancellation of the visa arose. This matter constituted a considerable proportion of the hearing and of the applicant written submissions. It is the applicant’s strong contention that the grounds for cancellation arose from circumstances beyond the control of the applicant. It was accepted that Mr C was acting as the agent for the educational institution which issued the CoE. As indicated in the departmental file, this was one of the prompts for the enquiry into the circumstances in which the applicant visa was granted. The applicant strongly denies having had any direct contact with Mr C, and there is no evidence of any such direct contact. I put to the applicant that it appeared that his visa application may have been countersigned by Mr C: this was contested and, in the absence of any means to confirm the identity of the signature, I formed no adverse inference in that regard. Against this, I have had regard to the fact that the visa application was clearly deficient in respect of the most meaningful of the GTE elements and that, even now, on the basis of the matters outlined in paragraph 20, I harbour serious doubt that the applicant satisfies the GTE elements.

1. There is no indication of any adverse behaviour towards the Department. This is given a degree of weight in the applicant’s favour.

2. The applicant’s wife and child are residing in Australia holding visas dependent on the applicant’s visa. If the applicant’s visa is cancelled, by operation of section 140(1) their visas will be cancelled as a consequence. I give this some weight against cancellation of the visa. This is also a matter to which I have given some weight in paragraph 34.

3. Should the visa be cancelled, the applicant and his family will become unlawful noncitizens and be liable for detention under section 189, and removal under section 198, of the Migration Act.  They may be eligible for temporary bridging visas should there be further matters that need to be resolved. If the visa were to be cancelled, the applicant would be subject to section 48 of the Act, which may limit his options to apply for further visas in Australia. He may also be affected by public interest criteria on 4013, limiting the granting of a further temporary visa for a specified period. All of these legal consequences I have taken into account and accorded some weight in favour of the applicant.

4. There was no submission to the effect that any of Australia’s international obligations might be invoked in respect of this application. However, I have considered whether the possible consequential cancellation of the child’s secondary subclass 500 Visa might raise implications under the UN Convention on the Rights of the Child. Given that the child lives with both of his parents, any cancellation would not result in separation of the child from his parents because of the dependent nature of his immigration status.  The best interests of the child are afforded by his remaining with both parents, this situation would be unchanged by the cancellation of the applicant’s visa.

5. Taking all of these factors into account, I give the most significant weight to my finding that the visa was granted as a result of the fraudulent conduct of the departmental employee. In the applicant’s favour I give the most significant weight to the potential hardship to him and his family, and to the circumstances in which the ground for cancellation arose. The weight I gave to the latter factors was significantly qualified.

6. The fact that a visa may have been granted as a result of fraudulent conduct, whether of the applicant or another person is a serious matter going to the integrity of the immigration system. There were very significant shortcomings in the visa application, particularly in relation to the vital GTE component. The policy for rigorous scrutiny to be given to Nigerian student visa applications arose directly from departmental experience that such applicant showed little incentive to return. While I have had regard to the fact that the applicant has sought to maintain his educational program, the integrity of the system cannot be said to be secured merely by a demonstration of substantial compliance once the applicant is onshore. This is particularly the case where the applicant remains onshore and the material needed to assess the GTE component remains unmet.

7. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

8. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

9. The Tribunal has no jurisdiction with respect to the other applicants.

   James Lambie
   Senior Member