Onotevu (Migration)

[2019] AATA 3589

Onotevu (Migration) [2019] AATA 3589 (14 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oghenevwede Patrick Onotevu

CASE NUMBER:  1725273

HOME AFFAIRS REFERENCE(S):           BCC2017/2969013

MEMBER:K. Chapman

DATE:14 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 14 July 2019 at 9:24pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – fraudulent conduct – corrupt conduct by a Departmental officer – valid s 376 certificates – never completed a course of study in Australia – not a genuine student – lacks credibility as a witness – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359A, 362A, 375A, 376
Migration Regulations 1994, r 2.43

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Guo v Commonwealth of Australia [2017] FCA 1355
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani v Minister for Immigration and Border Protection [2015] FCCA 445
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 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 applicant, Mr Oghenevwede Patrick Onotevu, is a Nigerian national.

2. The visa was cancelled under s.116(1)(g) of the Act on the basis that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person pursuant to the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 (‘the Regulations’). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The visa cancellation decision record of 11 October 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:

   a.on 8 March 2017, the applicant made an electronic application for a Subclass 500 Student visa;

   b.on 14 March 2017, the applicant was granted a Subclass 500 Student visa by a locally engaged Departmental employee in Pretoria, South Africa;

   c.on 25 March 2017, the applicant arrived in Australia;

   d.an investigation indicates that a locally engaged Departmental employee acted improperly by way of fraudulent conduct to grant the applicant’s visa;

   e.on 29 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa;

   f.on 8 September 2017, the applicant responded in writing to the NOICC denying he was involved in any wrongdoing and submitting material in support of his contention that he satisfies the criteria for the Student visa (the Tribunal has duly considered the aforementioned material); and

   g.on 11 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa.

4. On 17 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. He subsequently provided a copy of that visa cancellation decision to the Tribunal. On 7 December 2017 and 18 January 2019, the Tribunal Registry sent copies of tranches of documents contained in the Departmental and Tribunal files in response to a request for access to written material pursuant to s.362A of the Act. Much of the material was despatched in redacted form, being subject to non-disclosure certificates issued by the Department. Included in the aforementioned material was a copy of the ‘Referral to General Cancellations Network Cancellation Consideration’ document, ‘Visa Cancellation Referral Report’ prepared by the Enforcement Command – Investigations of the Australian Border Force, two ‘Investigation Report LES Misconduct’ documents pertaining to Locally Engaged Staff (LES) at the Australia High Commission (AHC) in Pretoria, South Africa, and an ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017 (also known as the ‘Key findings PMOI’ document).

5. In summary, the investigative reports referred to above outline that the Department launched an investigation into the conduct of Locally Engaged Staff in Pretoria when suspicions were raised that some Nigerian Student visa holders were engaging in criminal activity following their arrival in Australia. The investigation concluded that two Locally Engaged Staff were bypassing established Departmental procedures when granting Student visas to a cohort of Nigerian applicants. One of the staff, whom the Tribunal will refer to as Officer A, was found to have corruptly received payments from a third party in Australia (whom the Tribunal shall refer to as Mr C, who was himself granted a Student visa). The other staff member, whom the Tribunal will refer to as Officer B, was found to have been allocated certain Nigerian Student visa applications to process by Officer A and processed them without sufficient scrutiny in an improper manner contrary to established Departmental procedures. Officer A and B were also found to have colluded with each other during the investigation into their alleged activities. In sum, neither Officer A nor B had legitimate authority to process the Nigerian Student visa applications according to established Departmental procedures and they were both found to have acted improperly in breach of their conditions of employment.

6. The applicant lodged his Student visa application on 8 March 2017 and the visa was granted by Officer B on 14 March 2017. The investigative reports indicate that Student visa applicants from Nigeria are deemed to be ‘high risk’ applicants who are subject to greater scrutiny in relation to the processing of such applications (see the document ‘Student visa Assessment methodology’ at folios 170-185 of Departmental file BCC2017/2969013, which was raised with the applicant pursuant to s.359AA of the Act as is referred to in greater detail below). Further, the Department engaged a senior Australian based Officer (the ‘Subject Matter Expert’) to conduct an audit on a selection of Nigerian Student visa holders who were alleged to have been granted their visas contrary to the established procedures for high risk applicants. The Tribunal notes that whilst the applicant is referred to in the ‘Visa Cancellation Referral Report’ as among the cohort of Nigerian Student visa holders suspected of obtaining their visas as a result of fraudulent conduct (see folio 79 of the Tribunal file), he was not selected to be part of the Subject Matter Expert audit.

7. As previously indicated, much of the material in the Departmental and Tribunal files was subject to redaction on the basis of non-disclosure certificates issued by the Department and also on account of the privacy considerations contained in Australian Privacy Principle 6 (APP 6). Liaison between the Tribunal and the Department regarding the issue of non-disclosure resulted in an initial certificate pursuant to s.375A of the Act dated 21 November 2017, in relation to file BCC2017/2969013, being revoked on 19 February 2018. It was replaced with a certificate pursuant to s.376 of the Act dated 19 February 2018. Further material was supplied by the Department to the Tribunal under cover of a certificate pursuant to s.376 of the Act dated 17 April 2018. As previously outlined, the tranches of documents furnished to the applicant, in response to a request for access to written material pursuant to s.362A of the Act, contained some redactions made on account of the non-disclosure certificates and the application of APP 6. The presence of the non-disclosure certificates and associated redaction of material was canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below.

8. On 18 January 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment on or respond to the following information:

   -According to the Referral to the General Cancellations Network Cancellation Consideration document (f.63-65 of Departmental file BCC2017/2969013) your visa application was processed and approved by a Departmental officer in circumstances where:

   -You were one of 21 Nigerian national clients 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’ client 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 education claims.

   -The deficiencies in the Departmental officer’s processing of your application indicated that without the conduct, as set out above and as detailed in the Visa Cancellation Referral Report (f.1-62 of Department file BCC2017/2969013 f.51-81 of Tribunal file 1725273), the visa would not have been granted.

9. In response to the s.359A invitation, on 3 and 24 February 2019, the Tribunal received documents including but not limited to written submissions, education agent information, an ‘email trail’ with various purported communications, financial records, flight itinerary, confirmations of enrolment (COE), educational results, bank statements, a financial sponsorship letter, a copy of the visa cancellation decision and a Statutory Declaration of the applicant dated 6 September 2017. All submitted material has been duly considered by the Tribunal.

10. On 14 June 2019, the Tribunal Registry sent to the applicant a copy of the Departmental file BCC2017/921800 pertaining to his Student visa application. Copies of the s.375A certificate dated 21 November 2017, the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018 were also sent to the applicant. Some of the aforementioned material was redacted in accordance with APP 6. The applicant was also invited to comment upon the validity of the enclosed non-disclosure certificates if he wished to do so (noting that the presence of the non-disclosure certificates and associated redaction of material was also canvassed with the applicant by the Tribunal during the review hearing, as is outlined in further detail below).

11. On 20 June 2019, the applicant submitted further written submissions and evidence to the Tribunal. In summary, the contention was made that third parties were acting in relation to the applicant’s Student visa application without the applicant having knowledge of any dubious conduct on their part. Material such as email correspondence, education agent information, documents submitted in relation to the Student visa application and financial information accompanied the aforementioned submission in support of the applicant’s claims. All submitted material has been duly considered by the Tribunal.

12. The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. He confirmed that no other person was providing evidence at the hearing. The applicant gave his evidence using the English language. The applicant was represented in relation to the review by his registered migration agent (‘the representative’). Further documents were submitted to the Tribunal at the review hearing including a Certificate of Birth, Certificate of Identification/Origin and a Revenue Collector’s Receipt. The Tribunal granted the applicant additional time to lodge post-hearing submissions and evidence. On 22 June 2019, the representative sent correspondence indicating he and the applicant would not disseminate information under the cover of the non-disclosure certificates (a Tribunal Officer subsequently clarified the representative’s obligations in this regard by telephone conversation of 24 June 2019). All submitted material has been duly considered by the Tribunal.

13. 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

14. 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) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. The prescribed grounds for cancellation are set out in r.2.43 of the Regulations.

15. In the present case, the ground in r.2.43(1)(o) is relevant as the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. 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?

16. The Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa dated 29 August 2017 identified s.116(1)(g) of the Act and r.2.43(1)(o) of the Regulations, in the context of an investigation suggesting a Departmental employee may have acted improperly to grant the visa therefore arousing a reasonable suspicion it was obtained as a result of fraudulent conduct, as the proposed basis for cancellation. The response of the applicant on 8 September 2017 indicated that he did not know of, nor have any complicity in, any inappropriate conduct, he satisfies the criteria for the grant of the visa regardless of any activities of the Departmental employee, he is in Australia meeting his obligations as a student, the ground of cancellation is not established and in any event discretionary factors such as hardship to him and the circumstances being outside of his control should see his visa not be cancelled. Supporting material such as a Statutory Declaration dated 6 September 2017, IELTS English language test results, identity documents, West African Senior School Certificate (the ‘WAEC Certificate’), Attestation of Education Sponsorship (from Dr Ovie Ughwanogho), educational results, confirmation of health insurance, financial records of the education sponsor (Dr Ovie Ughwanogho), and confirmations of enrolment (COE) were also submitted to the Department by the applicant.

17. In summary, the applicant claimed in his response to the NOICC that he had no knowledge of any wrongdoing, satisfies the criteria for the visa and would face terrible hardship if his visa was cancelled for events outside of his control. The Tribunal has duly considered the applicant’s contentions and supporting material in response to the NOICC and affords it some weight against cancellation of his Student visa. For completeness, the Tribunal is satisfied that the NOICC was correctly framed and properly identified the basis of the proposed visa cancellation.

18. In relation to his review application, the applicant expanded upon the contentions outlined above. In written material, the applicant advanced the position that a close family friend in Nigeria, Father Nethanial Ajogri, suggested he contact a Mr Peterson Okechukwu Nwabuokei (‘Petersen’) in Australia for assistance with a Student visa application. It is further contended that Petersen liaised with Mr C (who is referred to in the investigative reports, including with respect to making corrupt payments to Officer A) and they acted improperly to submit the Student visa application, including by way of establishing an online application account and email address without the applicant’s knowledge. The applicant maintained that he relied upon Petersen following the recommendation from his priest, paid $7,500 for his assistance and never saw the visa application or communicated with the Department or Mr C.

19. Further, the applicant maintained that his Student visa was granted by Officer B, who had not been shown to receive payments from Mr C but rather had processed a batch of visas to increase her statistical output, and therefore no fraudulent conduct was apparent. The applicant submitted further supporting material including confirmations of enrolment (COE), financial records, a Statutory Declaration dated 6 September 2017, a statement from Dr Ovie Ughwanogho, identity records and documents purportedly indicating that he satisfies the criteria for the grant of the Student visa. Much of the aforementioned material had been submitted to the Department in response to the NOICC. All submitted supporting material has been duly considered by the Tribunal and it is afforded some weight against cancellation of the applicant’s Student visa.

20. At the review hearing, the Tribunal began by explaining its role and the purpose of the hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(g) of the Act as the delegate concluded the prescribed ground in r.2.43(1)(o) exists as he reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, it must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

21. The applicant gave oral evidence to the Tribunal which may be summarised as follows. He confirmed that his Statutory Declaration of 6 September 2017 contained true and correct information. The applicant advised that in relation to the NOICC and his response to it, he had nothing extra to add to the submissions of his representative. The applicant disagrees with the decision to cancel his visa because it happened due to reasons beyond his control, he doesn’t know anything about it and he wants his perspective heard.

22. During the review hearing the Tribunal conferred with the applicant and the representative regarding the existence of the s.375A certificate dated 21 November 2017, the revocation of the s.375A certificate dated 19 February 2018, the s.376 certificate dated 19 February 2018 and the s.376 certificate dated 17 April 2018. The Tribunal outlined that redactions of material supplied to the applicant were due in part to these certificates and also due to the application of APP 6. The applicant was invited to comment upon the validity of the aforementioned non-disclosure certificates and the privacy redactions. The representative submitted that he understands why the redactions have been made and does not question them. The Tribunal expressed its preliminary view that the s.376 certificates are valid as public interest grounds are stated and that the redactions had been properly made. The Tribunal outlined that the ‘gist’ of the information covered by the majority of the redactions related to the identities of third parties. The applicant was invited to make submissions upon the aforementioned however, aside from the representative indicating the discussion on certificates seemed to arise from his use of the LES names in his submissions, no further submissions were made upon the validity of the certificates or redactions.

23. Following careful consideration, the Tribunal is satisfied that the s.376 certificates are valid and accordingly it has exercised its discretion to release material in redacted form having regard to the stated public interest grounds and providing the applicant with the opportunity to comment upon the ‘gist’ of the material not disclosed in full to him (noting also that redactions have been made in accordance with APP 6). For the sake of completeness, the Tribunal notes that it has not placed any weight in an adverse fashion upon material not disclosed in full to the applicant unless specifically referred to pursuant to the procedures in s.359A and s.359AA of the Act.

1. The Tribunal raised with the applicant that the Registry did not send him a copy of folios 180-185 of Departmental File BCC2017/2969013 in accordance with the applicable s.376 certificate (the ‘Student visa Assessment methodology’ document). Given that the s.376 certificate is valid, the Tribunal determined not to release the document in full to the applicant but provided him the ‘gist’ of the information contained within, in conjunction with other information, and did so pursuant to the procedure in s.359AA of the Act:

   a.The gist of the information relates to the document entitled ‘Student visa Assessment methodology’. It contains guidance to Departmental Officers for the processing of Student visa applications including the necessity to perform certain checks upon information such as that relating to identity, enrolment, English language ability, employment, finances and character. Relevantly for offshore applicants considered to be ‘high risk’, more rigorous scrutiny is given to examination of the Genuine Temporary Entrant (GTE) requirement such as checking employment and education documents for any evidence of fraud, checking study and employment history particulars and also assessing the other relevant circumstances of the applicant in a more detailed fashion. Generally, an applicant would be interviewed by a Departmental Officer in relation to such visa applications;

   b.The Departmental file BCC2017/921800, which is the Student visa application file, indicates that the applicant had not provided to the Department a copy of his secondary school results at the time he was granted the visa; and

   c.The document ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017, also known as the ‘Key Findings PMOI’ document, indicates that it is almost certain that there is active organised people smuggling of Nigerian citizens through the use of fraudulent documentation to obtain student visas facilitated by a locally engaged employee and it is almost certain that a locally engaged employee ‘is receiving money in return for granting student visas containing false information and fraudulent documents.’

2. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that his Student visa was obtained as a result of fraudulent conduct by a Departmental Officer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant requested an adjournment to confer with the representative which was duly granted.

3. Following the adjournment, the applicant advised he would respond to the information now. The applicant responded to the s.359AA information by indicating that following secondary school he was looking for a good opportunity for further study. He was advised by a priest that there was a brother of a fellow priest named ‘Petersen’ who knew the system and the laws in Australia. The applicant subsequently contacted Petersen who advised him of the necessary requirements. The applicant and his parents believed that he met the criteria for the Student visa and he sent everything to Petersen including his secondary school certificate. The applicant undertook his medical checks and went to the Australian visa Centre for certification in this regard. He found it strange that his WAEC Certificate had not been provided to the Department. The applicant also advised he had no idea about people smuggling, he went to the Australian visa Centre who advised all was in order, his visa was sent to him by Petersen and he submitted all legitimate documents. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

4. The Tribunal indicated to the applicant that the material raised with him in the s.359A invitation prior to the hearing, that is the Visa Cancellation Referral Report and the two Investigation Reports into LES Misconduct, tends to suggest that his visa was granted by Officer B, in a manner that did not follow established Departmental procedures and therefore it was obtained as a result of fraudulent conduct. The applicant was invited to comment and indicated that the Officer in question is an employee of the Department, he had no contact with that employee, he didn’t know the procedures, he submitted all documents legitimately and he believes all criteria for the Student visa have been met. The applicant maintained that the grant of his visa had nothing to do with fraudulent conduct, he didn’t know what the relevant Officer did and he should not be responsible for the actions of that Officer.

5. The Tribunal raised with the applicant that the two Investigation Reports into LES Misconduct make findings that Officers A and B colluded with each other by being in contact during the investigation contrary to the terms of their suspensions. For example, Officer B initially denied being in such contact then admitted it only when presented with evidence from mobile phone records. The investigators found portions of Officer B’s evidence to be inconsistent and implausible. They determined that Officer A received payment for granting Student visas and also that she assigned applications to Officer B in a manner contrary to established Departmental procedures. They also determined Officer B granted Student visas to Nigerian students based upon the advice of Officer A and without applying appropriate visa assessment processes and scrutiny. The Tribunal indicated that this material, which was raised with the applicant according to s.359A of the Act, tends to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and indicated that the aforementioned suggestion doesn’t sound right, as if he is not involved in the conduct then how could it be that his visa was granted fraudulently? He added that he is the victim of misconduct by another and this is not fair.

6. The Tribunal raised with the applicant that in written submissions on his behalf it was contended that Officer B was only processing Student visas to increase their statistics, however the investigative reports indicate Officers A and B were colluding with each other. The applicant was invited to comment and had no comment to make. The Tribunal invited the representative to make a submission and he agreed that the Tribunal’s summary of his prior written submissions was accurate. The representative maintained his position that Officer A had received money from Mr C, however Officer B only admitted to processing the Student visas in seeking to improve their statistics. The representative added that Officer B might have answered the questions of the investigators in the manner they did because they felt they were ‘caught out’. The representative questioned whether Officer B committed fraud according to the dictionary definition and opined that they told the truth about increasing their statistics and never received any money for doing so. The Tribunal raised with the representative that the concept of fraud is wider than the acceptance of money, for example it encompassed deceit or improper conduct, inviting his comment. The representative agreed that this is the case then asked for discretion to be exercised in the applicant’s favour.

7. The Tribunal asked the representative why it might give his assertion of no poor conduct upon the part of Officer B higher weight than the contents of the investigative reports, inviting his comment. The representative responded that it was not the most important matter whether Officers A and B colluded, rather that the applicant was not involved. The representative then submitted that payments went from Mr C to Officer A, Mr C was a student agent and not a registered migration agent, Mr C wouldn’t tell anyone he was making payments as he would be shut down and it is illogical for persons like the applicant to know of Mr C’s activities. The applicant told the Tribunal that he found out from the representative that Petersen went through Mr C. The Tribunal raised with the applicant that the aforementioned evidence might tend to suggest that Mr C was involved in his visa application and as the investigative reports indicate Mr C was involved with Officer A in turn that might tend to suggest fraud was involved in the applicant’s visa application, inviting his comment. In response, the applicant opined that everybody might be punished because of the actions of Mr C and the other Officers. The representative was invited to make further submissions but declined to do so.

8. The Tribunal raised with the applicant that in written submissions he indicated he liaised with and paid money to Petersen, who then appears to communicate with Mr C in relation to his Student visa application. Further, the applicant submitted copies of emails claiming these men were acting inappropriately in relation to his Student visa application and those of others. The Tribunal invited the applicant to provide further information and he agreed that he paid around $7,500 to Petersen but did nothing wrong himself. The applicant advised the Tribunal that he sent all of his certificates and statements to Petersen, but the rest such as that connected with his medical requirements was sent directly to the Australian visa Office.

9. When asked by the Tribunal about his employment in Nigeria, the applicant advised that he had worked at ‘Texshare’ (Texshare Motors Limited) and he sent the letter confirming this employment to Petersen. The applicant initially indicated he was engaged by Texshare in a consultancy role. He advised that another man from Texshare also travelled to Australia. When asked by the Tribunal to provide further information regarding his employment in Nigeria, the applicant advised that whilst at university he worked in customer service as a media intern with the television station Delta Broadcasting Service (DBS) for around 6 months between 2014 and 2015, usually 3-4 days per week. Following university he went on holiday then went to work for Texshare. The applicant informed the Tribunal that he ‘didn’t take them too seriously’ and he was ‘more like a passive worker’.

10. When asked by the Tribunal if he submitted employment documentation from DBS with his Student visa application the applicant answered no, advising that he did not consider it employment rather it was more a period of experience. When asked by the Tribunal if he was working when he applied for the Student visa, the applicant confirmed he was not working on 8 March 2017 (the time of the visa application). At that time the applicant was helping his parents at home, his mother running an agricultural business and his father a school principal. The applicant did not really consider this to be a job. He confirmed to the Tribunal that he was performing his unpaid internship with DBS prior to assisting his parents and finished there ‘a while before the visa application.’ When asked by the Tribunal for further particulars regarding his time at DBS, the applicant indicated he was with them ‘possibly’ in 2015 and 2016 but he was ‘not sure’. He confirmed he was at secondary school prior to undertaking the internship with DBS and held no other employment before DBS. The applicant did not remember declaring any other employment with his Student visa application as he did not fill in the forms.

11. When asked by the Tribunal to provide further particulars of his role at Texshare, the applicant advised he was a marketer who was not full-time and more like a ‘passive worker’. He explained that he would receive a commission for every customer he located for Texshare. The applicant informed the Tribunal that he lived in a different State of Nigeria to the physical location of Texshare and ‘didn’t take it seriously’. He advised that he could still be considered to be engaged by Texshare now, although he has lost contact with them.

12. When asked by the Tribunal how he obtained his position with Texshare, the applicant advised that he was referred by a friend. He could not remember the friend’s name because it was a long time ago. The applicant confirmed he never physically visited Texshare, rather he liaised with a person named Kelvin, although that person was not his supervisor or boss. The applicant could not recall how long he was engaged by Texshare. When the Tribunal raised with the applicant that his lack of detail regarding Texshare appeared curious, he responded that he is not in contact with them now because his mobile phone was stolen in Australia and he didn’t take Texshare seriously. He was unable to provide a ‘definitive period of time’ regarding his engagement by Texshare. When asked by the Tribunal to outline the commissions he received from Texshare, the applicant indicated he didn’t think he ever obtained a customer for them, he didn’t take it too seriously and ultimately he confirmed he never received a commission from them.

13. The applicant advised the Tribunal that he met two other men in Australia whom he lived with in the same house. They both had received assistance through Petersen. The applicant knew of the family of one of the men in Nigeria and didn’t know the other personally until he came to Australia. The applicant advised that he initially knew one of the men also worked at Texshare, then changed tack with his evidence to indicate that he didn’t know if this was the case. The applicant explained that when he applied for his Student visa he was not going back to Texshare but he definitely intended to return to Nigeria, adding he wanted to start a business.

14. When asked by the Tribunal how he obtained the submitted employment letter from Texshare, the applicant indicated he was ‘not sure’ and thought it came from Kelvin. When the Tribunal raised that it appeared unusual he could not recall the details, the applicant advised that in Australia he has had documents signed for him by persons he has never met (making reference to an example by a Doctor). He didn’t think to refer to DBS in connection with his Student visa application because he was an intern. The applicant advised the document from Texshare was the one requested for his visa application by Petersen and he considered himself to be an ‘affiliated agent’ of that business. The applicant again confirmed he was not a staff member at the physical location of Texshare, didn’t really take it seriously, and ‘doesn’t remember’ taking a commission from them. When the Tribunal raised with the applicant that his arrangements concerning Texshare might seem unusual, he advised that he discussed his internship with Petersen but he didn’t consider himself an employee, he wondered why work records were required for the Student visa application but he just focused on Texshare.

15. The applicant advised the Tribunal that he now didn’t regard himself as employed by Texshare given his lack of payment. He maintained that Texshare exists and he ‘thinks’ they deal with cars. The applicant indicated he never submitted any false or untruthful documents and had no other employment in Nigeria other than as discussed. During the provision of his oral evidence concerning his purported engagement with Texshare, the Tribunal observed the applicant to provide vague and inconsistent accounts, whilst displaying an evasive demeanour.

16. When the Tribunal raised with the applicant that it seemed curious he had no involvement with his Student visa application itself other than to send documents to a third party, the applicant responded that he considered he made a big mistake trusting Petersen. He took the recommendation of the priest to mean a lot and he was told by others that he would need to pay for assistance. He thought he could trust the advice given to him. The Tribunal raised with the applicant that it might have difficulty accepting he had no involvement with his Student visa application itself other than to send documents to a third party, inviting his comment. The applicant responded that he sent his documents to others, although he did the medicals himself, but never checked the details of the visa application.

17. The Tribunal raised with the applicant that as he advised he did not check his Student visa application details, it might have difficulty accepting the cancellation of his visa was outside of his control, inviting his comment. The applicant responded that he might have been ignorant in not checking the application, he was young and he was interviewed by his education college on webcam so he had no reason to ask questions about the form. The Tribunal also raised with the applicant that it might have difficulty accepting he is a Genuine Temporary Entrant for study as reflected in Ministerial Direction 69 given the aforementioned evidence, inviting his comment. The applicant replied that he used an agent whom he trusted and believed his payment for study was legitimate as he received a receipt from the educational college.

18. The Tribunal drew to the applicant’s attention that given the material raised with him in the s.359A invitation prior to the hearing, that is the Referral to the General Cancellations Network Cancellation Consideration document, the Visa Cancellation Referral Report, and the two Investigation Reports into LES Misconduct, indicates Mr C made payments to Officer A to obtain Student visas, this might tend to suggest that his Student visa was obtained as a result of fraudulent conduct. The applicant was invited to comment and responded that he didn’t know anything about a fraudulent Officer, he did everything legitimately, he doesn’t think his visa should be cancelled and he wants a fair review of his case.

19. The Tribunal indicated that the above matters raised with him might tend to suggest that his Student visa was obtained as a result of fraudulent conduct, the ground for cancelling his visa exists and that discretion should be exercised to cancel his visa. The applicant was invited to comment and responded that that’s the law but there is still the matter of discretion. He asked the Tribunal to consider that he knows nothing about this and didn’t participate in any fraudulent activities.

20. When asked by the Tribunal why he came to Australia on 25 March 2017 as reflected in the delegate’s visa cancellation decision, the applicant explained that it was to study and from the moment he arrived he has been studying. He wants to learn to improve things at home and to help his parents with their business. When asked by the Tribunal to outline his study history in Australia, the applicant indicated he got to Australia through Petersen and studied at Queensford College. He had planned to study a Diploma of Business followed by an Advanced Diploma of Business but then wanted to do something different and switched to study Individual Support. The applicant was about to commence his practical placement in the Individual Support course when his Student visa was cancelled and he was taken into immigration detention. Following his release he attempted to obtain study rights but the education college had cancelled his COE on account of the Student visa cancellation. The applicant never received back his study rights and has not studied in Australia since the visa cancellation decision. He explained that his life has been on hold since then. The applicant has worked as a storeman in compliance with his 40 hour per fortnight work limitation, noting that he needed full time work. The applicant confirmed to the Tribunal that he has never completed a course of study in Australia.

21. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    a.The Tribunal file at folios 28-50 contains his records of study, as at December 2017, from the Provider Registration and International Student Management System (PRISMS) indicating no course completion by him.

1. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that at that time he had not demonstrated he had been in Australia as a genuine student. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant responded to the s.359AA information straight away by indicating that he couldn’t complete courses because his visa was cancelled which was out of his control and it was not possible for him to go back to study. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

2. The Tribunal raised with the applicant that as he arrived in Australia on 25 March 2017, his visa was cancelled on 11 October 2017, and in that time he has completed no courses this might tend to suggest he is not in Australia as a genuine student, inviting his comment. The applicant replied that he couldn’t finish a course of study in that time because his visa was cancelled. He added that he wanted to study but couldn’t continue as his educational college would not respond to his request to reinstate his COE.

3. When asked by the Tribunal to outline his present circumstances, the applicant explained that his life is on hold, he has lost a lot of time and he wants to go back to study. He advised he works as a forklift driver currently performing on call agency work. The applicant holds a Bridging Visa E with a 40 hour per fortnight work limitation, which he says he has not breached. He indicated he has not breached any visa conditions at all and has not committed any crime. The applicant sustains himself with agency work and is sometimes sent money. He came to Australia to study but can’t do it now and he is trying to minimise costs.

4. The Tribunal raised with the applicant that all the Australian visas he has held are of a temporary nature and that the purpose of the Subclass 500 Student visa is to enable a visa holder to study and then return to their home country at the completion of their studies. Additionally, there should be no expectation that the grant of a Subclass 500 visa would lead to an extended stay in Australia. The applicant was invited to comment upon the aforementioned and he agreed that the Student visa is a temporary visa. He indicated that when the Student visa expires it is at the liberty of the Department to grant a new one. The applicant outlined that his intention is to finish his study and then return home.

5. When asked by the Tribunal if he had a compelling need to remain in Australia, the applicant responded that he came here to study and his parents put in everything for this. The applicant’s mother became ill when his visa was cancelled and she remains upset. He feels as though a huge part of his life has been wasted and he wants to complete his studies, better himself and he doesn’t want his mother to be devastated. The applicant explained that his family members reside in Nigeria and he has no children. When asked by the Tribunal if he or anybody else would face hardship if his Student visa was cancelled, the applicant replied that if his visa is cancelled it will affect his family as everything they have sacrificed for will ‘go down the drain’.

6. When asked if there were circumstances beyond his control that led to his visa being considered for cancellation, the applicant replied that there are because the Departmental Officers being involved in the misconduct is beyond his control. He added that he didn’t know about their misconduct and it was out of his control. The applicant indicated he has always been truthful and cooperative with the Department and there are no secondary applicants on his visa subject to consequential visa cancellation.

7. The Tribunal raised with the applicant that if his visa is cancelled, and he does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia, he would be liable to removal from Australia and he would likely face difficulties obtaining a new Australian visa in the future. The applicant was invited to comment but initially declined to do so then added he had already been in immigration detention. When asked by the Tribunal if there are any international obligations concerning his case he replied that there were not. When asked by the Tribunal if there is any reason he cannot return to Nigeria he responded that there is no reason. When asked by the Tribunal if there are any other matters to be considered in his case, the applicant advised that he wants to be considered as an individual having regard to everything that has happened to him.

8. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

   a.The Department file BCC2017/921800, relating to his Student visa application, contains a copy of a reference from Texshare Motors Limited dated 1 March 2017 which reads as follows:

   “To Whom it May Concern

   This letter is to confirm that Mr Onotevu Oghevwede Patrick has been working in the family business company of unpaid volunteer as a receptionist since August 2015 to have an idea of how the business runs.

   His duties included answering a 10 line phone, providing our client and customers with a high level of customer service and data entry.

   We have no doubt that Mr. Onotevu will be successful in pursuing of his dream career in management as he has shown the enthusiasm during his time of works.

   Mr. Patrick will officially return to the family business into the real managerial role to display his skill and to bring new idea towards the growth of the business after he must have had qualifications that would enhance him to work in our management sector upon completion of his study in Australia.

   If you require any further confirmation concerning Mr. Patrick please do not hesitate to contact us.

   Sincerely

   Oscar
   General Manager
   [phone]”; and

   b.At the hearing the applicant told the Tribunal that he obtained a reference from Texshare Motors Limited but could not remember well whom he got it from, he said he did not physically work there, he didn’t receive any commissions and he worked in a marketing role. He provided his evidence concerning these matters in a vague and evasive fashion and the information in the reference is inconsistent with his oral evidence.

9. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he did not work for Texshare Motors Limited in the manner indicated in the reference, he lacks credibility as a witness and his Student visa was obtained as a result of fraudulent conduct. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Student visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review and he was asked whether he would like to comment on or respond to the information now or would he like more time to do so. The applicant responded to the s.359AA information straight away by indicating that he hadn’t seen the reference letter and he doesn’t know how Petersen obtained it. He advised that Texshare is not his family business. The applicant indicated he requested a letter from Texshare and it seems to have been provided by Kelvin to Petersen, with the contents of the letter not reflecting the nature of his relationship with Texshare Motors Limited. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

10. Prior to the conclusion of the review hearing the applicant advised he had no further evidence to provide. The representative requested the Tribunal to ask the applicant to clarify his activities prior to his Student visa application. The Tribunal canvassed this with the applicant and he indicated he went to secondary school and then to university to obtain the internship. The representative requested the Tribunal to ask the applicant if he completed the Student visa application himself. The Tribunal canvassed this with the applicant and he indicated he did not do so, rather he sent different documents to Petersen and there has been a mix up. He indicated he did not know where the letter from Texshare Motors Limited came from. The Tribunal raised with the applicant that it seemed strange he could not remember his work details to which he replied that he relied upon Petersen and the letter did not reflect what he did.

11. The applicant and representative confirmed there was no further evidence to provide at the review hearing. The Tribunal granted four days for any post-hearing submissions and evidence to be provided. As previously noted, on 22 June 2019 the representative sent correspondence indicating he and the applicant would not disseminate information under the cover of the non-disclosure certificates. No further material has been received by the Tribunal.

    The ground for cancellation exists

12. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(g) of the Act exists. The prescribed ground in r.2.43(1)(o) provides, ‘that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.’ Departmental policy regarding the aforementioned prescribed ground indicates:

    Scope - Fraudulent conduct

    The prescribed ground for cancellation in regulation 2.43(1)(o) is that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

    '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, or 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

    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]

    [1] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)’.

13. The Tribunal notes that the ordinary English language meaning of ‘fraud’ is recorded in the Macquarie Dictionary (online edition) as involving:

    deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.[2]

    [2] Macquarie Dictionary (online edition), accessed 14 July 2019.

14. Accordingly, the Tribunal forms the view that the term ‘fraudulent conduct’ is that which contains the character described in the above dictionary definition (for example, that involving an element of deceit seeking to gain an unfair advantage). Further, having regard to the guidance in Departmental policy, the Tribunal considers that when assessing the relevant ground for visa cancellation through the lens of the term ‘reasonably suspects’, a causal link is required between the obtaining of the visa and the fraudulent conduct of any person, in order to enliven that ground. Having regard to the judicial remarks of Justice Bromberg in the matter of Patel[3], the Tribunal notes that 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.  

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

15. Regarding the term ‘reasonably suspects’, the Tribunal notes the judicial guidance establishing the following principles. It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient[4]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[5] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[6] 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.[7] The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[8] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[9] 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.[10] 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.[11]

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

    [5] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [86] (per Flick and Rangiah JJ) citing George v Rockett (1990) 170 CLR 104 at 115 – 116.

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

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

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

    [9] Ibid.

    [10] 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].

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

16. The Tribunal notes that in submissions on behalf of the applicant it was contended that a prior decision of the Tribunal (differently constituted) in the matter of Odinkaeze[12] is ‘close to identical’ to the present application for review regarding the assessment of whether the ground for visa cancellation exists. Whilst the Tribunal has paid due regard and respect to this prior decision, it is not binding with respect to the present review and, in any event, the facts are distinguishable between the two matters. For example, in the earlier matter there is no evidence of the involvement of Mr C, whereas in the present matter the applicant has submitted evidence that Petersen liaised with Mr C in relation to his Student visa application. Ultimately the Tribunal (differently constituted) in Odinkaeze, assessing the particular evidence before it and making findings of fact accordingly, reached the conclusion that it was not satisfied of a causal link between the obtaining of the visa and the fraudulent conduct of any person. The task for the Tribunal in the present review is to assess the particular evidence before it and make its own findings based upon such evidence.

    [12] Odinkaeze (Migration) [2018] AATA 1295.

17. Having paid careful consideration to the evidence in the present matter, the Tribunal reasonably suspects that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer B for the reasons that follow. As previously outlined, the Tribunal raised elements of the investigative reports with the applicant utilising the provisions of s.359A and s.359AA of the Act. When considered holistically, it is apparent that the applicant was considered a ‘high risk’ Student visa applicant due to his Nigerian nationality and accordingly his visa application should have been processed with the additional scrutiny outlined in the document ‘Student visa Assessment methodology’, by a Departmental Officer (including LES) with formal authority to do so in accordance with the established procedures outlined in the investigative reports. The Tribunal accepts the conclusions reached in the investigative reports that Officer B lacked the formal authority to process the applicant’s Student visa application and that Officer A lacked formal authority to assign this application to the former. It is worth pausing to reflect that the aforementioned Officers (LES) were not formally assigned to process Student visa applications at the time they did so in relation to the cohort examined in the investigative reports and neither disputed this position.

18. At the time the applicant’s Student visa was granted, on 14 March 2017, his application did not contain a copy of his secondary school results. If established Departmental processes were followed, such an omission would have prevented the grant of the Student visa at that time without further checks being performed. Accordingly, the Tribunal is satisfied that the applicant’s Student visa application was lacking the information ordinarily required in accordance with established Departmental procedures at the time his visa was granted by Officer B, who acted without formal authority to do so. In reaching the aforementioned conclusion, the Tribunal has duly considered the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, the WAEC Certificate, his Statutory Declaration dated 6 September 2017, IELTS English language test results, confirmations of enrolment (COE), identity documents, Attestation of Education Sponsorship from Dr Ovie Ughwanogho, educational results, confirmation of health insurance, and financial records of the education sponsor Dr Ovie Ughwanogho). Some weight is afforded by the Tribunal to this material, however, its submission post-visa grant does not displace the conclusion that the applicant failed to furnish sufficient evidence to the Department to demonstrate that he satisfied the criteria for the grant of the Student visa at the time it was granted by Officer B, who acted without formal authority and in contravention of established Departmental procedures to make the grant.

19. The investigative reports also conclude that Officer A received corrupt payments from Mr C and further that Officer A assigned several visa applications to Officer B for processing without formal authority to do so. The applicant submitted evidence to the Tribunal indicating Petersen liaised with Mr C in relation to his Student visa application, albeit without his knowledge. The investigative reports also concluded that Officers A and B colluded during the investigation into their alleged activities and both were found to have acted improperly in breach of their conditions of employment. Further, the investigators found portions of Officer B’s evidence to be inconsistent and implausible.

20. Having regard to the above matters, the Tribunal does not accept the contention advanced by the applicant that Officer B was processing Student visa applications merely to increase their statistical output. Nor does the Tribunal accept that, at the time the applicant was granted his Student visa, he had furnished the Department with the material required to have satisfied the criteria for grant of that visa in light of established Departmental procedures. If those procedures were followed correctly, the applicant’s visa could not have been granted by Officer B who lacked formal authority to make the grant. The Tribunal places high weight upon the evidence and findings contained in the investigative reports, including the established Departmental procedures outlined, given their official nature, content and lack of persuasive evidence to disturb their veracity. On balance, the Tribunal reasonably suspects that the applicant’s Student visa was obtained as a result of the fraudulent conduct of Officer B (noting that the element of deceit seeking to gain an unfair advantage, and a causal link between the conduct and visa grant, are present).

1. The Tribunal notes that the applicant staunchly maintained his lack of culpability in relation to the evidence pointing to the improper actions of Officers A and B, Mr C and Petersen. The Tribunal developed serious concerns with the credibility of the applicant during the review hearing given his vague and inconsistent oral evidence, delivered in an evasive fashion, regarding his engagement with Texshare Motors Limited. For example, the applicant initially advised that he obtained the submitted reference from Texshare himself and sent it to Petersen, then subsequently changed tack to indicate he was not sure how the letter was obtained and he thought it was sent directly from Kelvin to Petersen, whilst disavowing any knowledge of its contents in relation to the time of his visa application. Additionally, the applicant could not recall the friend who referred him to Texshare in the first instance, nor how long he was engaged by that business. The applicant also appeared uncertain as to the business operations of Texshare and indicated that he ‘thinks’ they deal with cars. Further, the applicant initially portrayed himself as engaged by Texshare in a consultancy style role (variously described), whilst living in another State of Nigeria to the physical location of that business, then sought to downplay his role and referred to it as a ‘passive one’ before ultimately advising that he never actually received a commission from Texshare.

2. Following careful consideration, the Tribunal finds that the applicant provided untruthful evidence with regard to his engagement by Texshare Motors Limited. On balance, the Tribunal does not accept that the applicant was ever engaged by the aforementioned business, or that the reference submitted to the Department with the visa application contains accurate information. Accordingly, the Tribunal reasonably suspects that the applicant became aware at some point that a false claim was made to the Department in relation to him being engaged by Texshare Motors Limited. The applicant did not attempt to correct this false claim with the Department and he attempted to mislead the Tribunal in relation to it, matters which reflect poorly upon him and weigh in favour of cancelling his visa. However, in relation to the assessment of whether the ground for visa cancellation exists, for reasons previously outlined, it is unnecessary for the Tribunal to be satisfied that the applicant has been involved in or is aware of the fraudulent conduct.  

3. Having carefully considered the evidence, the Tribunal is prepared to accept that the applicant was unaware of the false claim made by Petersen, in relation to him having been engaged by Texshare Motors Limited, at the time the visa was granted. Additionally, the Tribunal is also prepared to accept that the applicant did not directly make entries in the online visa application form. Therefore, the Tribunal is prepared to accept that the applicant provided information to Petersen who arranged for the visa application to be lodged, without the applicant actually preparing the online application himself or being personally involved in fraudulent conduct at the time of the visa grant. However, whilst the aforementioned matters weigh against cancellation of the applicant’s visa, the Tribunal does not accept they are persuasive indicators of an absence of fraudulent conduct regarding the grant of that visa.

4. For the reasons expressed above, 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 power to cancel the visa should be exercised.

   Consideration of discretion

5. 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’.

6. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

7. The applicant’s background has been detailed above. He arrived in Australia as the holder of a Subclass 500 Student visa on 25 March 2017. The applicant’s visa would have been due to expire on 16 October 2020 had it not been cancelled on 11 October 2017. The Tribunal notes that the applicant has not completed any course of study since his arrival in Australia. It is worth pausing to reflect that the applicant has been in Australia for approximately 27 months and some 21 months have elapsed since his Student visa was cancelled. Whilst accepting that the applicant initially studied until his visa was cancelled, the Tribunal is not satisfied that he has made a serious attempt to resume study given the significant passage of time since the visa cancellation. Having regard to the aforementioned matters, the Tribunal does not accept that the applicant genuinely intends to resume his studies in Australia. The Tribunal has paid due regard to the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, the WAEC Certificate, his Statutory Declaration dated 6 September 2017, IELTS English language test results, confirmations of enrolment (COE), identity documents, Attestation of Education Sponsorship from Dr Ovie Ughwanogho, educational results, confirmation of health insurance, and financial records of the education sponsor Dr Ovie Ughwanogho) and affords some weight to it. However, following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia for study is no longer extant. Accordingly, the Tribunal finds that this factor weighs in favour of cancelling the applicant’s visa.

8. The Tribunal has also had regard to the circumstances in which the ground for visa cancellation arose. For reasons previously outlined, the Tribunal reasonably suspects that the applicant’s visa has been obtained as a result of the fraudulent conduct of Officer B which has enlivened the ground of visa cancellation. The manner in which the applicant’s Student visa was granted in contravention of established Departmental procedures greatly undermines the integrity of the Australian visa system and the Student visa program in the view of the Tribunal. This is a factor which weighs in favour of cancelling the applicant’s visa.

9. The Tribunal notes that the applicant maintains he was not involved in any fraudulent conduct in relation to him obtaining the Student visa. Whilst the Tribunal developed serious concerns with the credibility of the applicant as outlined above, it is prepared to accept that he was not himself involved in any fraudulent conduct at the time of the visa grant and this weighs against the cancellation of his visa (noting the Tribunal has also found that following the grant of his Student visa the applicant became aware of the false claim in relation to him being engaged by Texshare Motors Limited and he did not seek to correct it). However, the Tribunal does not accept that the ground for visa cancellation arose due to circumstances beyond the applicant’s control for the following reasons. The applicant is an educated individual who chose to pay Petersen for visa assistance upon the advice of his priest. On his own evidence, the applicant failed to perform any review of his visa application at all, rather he just sent material to Petersen. The Tribunal does not accept the contentions of the applicant that his trust in Petersen, fostered by faith in his priest’s recommendation, demonstrates the ground for visa cancellation arose due to circumstances beyond his control, given he failed to perform even a cursory review of his Student visa application.

10. The Tribunal accepts that the applicant will face some hardship if his Student visa is cancelled given he will lose the ability to complete any study in Australia in the short term, he and his parents have expended significant funds in him coming to Australia to study, he and his family members will feel some upset at the situation (noting the applicant’s mother has been ill and is still upset by the visa cancellation), and he feels that his life has been on hold with a huge part of it wasted. The aforementioned matters weigh against cancellation of his Student visa.

11. The Tribunal accepts that if the applicant’s Student visa is cancelled and he does not hold a valid visa he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia and he would be liable to removal from Australia. Further he would likely face difficulties obtaining a new Australian visa in the future, including by way of facing an exclusion period as a result of a Student visa cancellation. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of nor against cancellation of the applicant’s visa given they are the intended consequences of legislation.

12. The Tribunal has also considered whether the applicant has a compelling need to remain in Australia. The expression ‘compelling need’ is not defined for the purposes of considering the exercise of discretion in the present review. The Tribunal notes and pays regard to the ordinary English language meaning of ‘compel’ as recorded in the Macquarie Dictionary (online edition):

    ‘to force or drive, especially to a course of action.’[13]

    [13] Macquarie Dictionary (online edition), accessed 14 July 2019.

13. Given that the applicant has not completed any course of study in Australia, nor is he currently enrolled in further study, the Tribunal is not satisfied that he genuinely intends to recommence study in this country. Accordingly, the Tribunal does not accept that he has a compelling need to remain in Australia. The Tribunal considers that the absence of a compelling need for the applicant to remain in Australia weighs neither in favour of, nor against, cancellation of his Student visa.

14. The Tribunal accepts there is no evidence before it of non-compliance with visa conditions and this matter weighs against cancellation of the applicant’s Student visa. There are no other individuals attached to the applicant’s Student visa who would receive a consequential visa cancellation if his own visa were cancelled and there are no circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing as previously outlined. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa.  However, regarding the past or present behaviour by the applicant towards the Department of Immigration (now entitled the Department of Home Affairs), the Tribunal finds that he failed to correct the false claim that he was engaged by Texshare Motors Limited and maintained it before the Tribunal upon review. The aforementioned matters weigh in favour of cancelling the applicant’s visa.

15. There is no evidence before the Tribunal indicating that Australia’s international obligations would be breached as a result of the visa cancellation, noting the applicant has no children and has made no claims regarding non-refoulement or an inability to return to Nigeria for reasons of facing harm or any other serious concern for his welfare. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there are any other relevant matters weighing either in favour of, or against, cancellation of his visa.    

    CONCLUSION

16. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s Student visa. The Tribunal has carefully reflected upon the aforementioned factors and it has considered the applicant’s claims individually and cumulatively. Several factors have been found by the Tribunal to weigh against the cancellation of this visa, as outlined above. However, the circumstances in which the ground of visa cancellation arose, in the context of a reasonable suspicion that the applicant’s Student visa has been obtained as a result of the fraudulent conduct of Officer B, are matters of grave concern for the Tribunal.

17. As previously outlined, the conduct identified in the investigative reports greatly undermines the integrity of the Australian visa system and the Student visa program. It strikes at the heart of the Australian Government’s ability to admit non-citizens into the country in an orderly fashion. In the view of the Tribunal, the circumstances in which the ground of visa cancellation arose weigh very strongly in favour of the visa cancellation. Additionally, the redundant purpose of the applicant being in Australia for study, and his poor behaviour towards the Department in not correcting the false claim regarding his engagement by Texshare Motors Limited, are factors that weigh strongly in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those to the contrary.

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

    DECISION

19. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    K. Chapman
    Member